
    Isaac P. Smith, as Executor, etc., Respondent, v. Havens Relief Fund Society, Respondent, Impleaded with Beekman Hunt and Others, Appellants.
    First Department,
    October 19, 1906.
    Appeal — failure to serve notice of appeal on codefendants who have not given notice of entry of judgment —motion to dismiss appeal denied on conditions.
    When, in an action to construe a will,, some defendants contend that the will is valid, and others that it is invalid, and on appeal by certain defendants from a j udgment determining that the will is valid, the appellants have served notice of appeal upon the plaintiff, the county clerk and such codefendants as have served notice of entry of judgment, the appeal should not be dismissed on the plaintiff’s motion for failure to' serve notice of appeal on codefendants who have not served notice of entry of judgment, but the motion should be deiiied on condition that the appellants serve the notice of appeal on defendants not served.
    The court has the discretion to allow perfecting- of such appeal under section 1303 of the Code of Civil Procedure. Such order will be made, although the appellants have inserted costs and allowances in judgment.
    Motion by the plaintiff, Isaac P. Smith, as executor, etc., to dismiss an appeal by the defendants Beekman Hunt and others from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      Arthur M. Silber, for the motion.
    -Clark & Veeder opposed.
   O’Brien, P. J.:

This action was brought by the plaintiff as executor to obtain a construction. of a will and an accounting; and the defendants, having adverse interests, answered, some -claiming that the will was invalid and others that it was valid. The latter was the view sustained by the Special Term in construing the provisions of the will and directing an accounting. Prom that judgment the appellants served notice of appeal upon the plaintiff, the county clerk, and such of the defendants as had served notice of entry of judgment on them.

It is insisted, however, that the appeal should be dismissed because the appellants omitted to serve notice of appeal upon the other defendants, and the question, therefore, presented upon this motion is whether the effect of .this omission is to place the appellants in default and entitle the plaintiff on this motion to have the appeal dismissed. It is contended that the plaintiff, as to whom the appeal was perfected, was not in a position to make the motion. But assuming that he had that right, we are brought to the merits, and this involves a determination as. to whether the failure to serve the notice of appeal upon all the codefendants entitled the plaintiff to a dismissal of the appeal.

We agree with the plaintiff respondent that with respect to the codefendants who are contending for the validity of the will, they were as to the defendant appellants adverse parties, and, therefore, it was the duty of the appellants, if those defendants had set the time running, to serve the notice of appeal upon them. But they did not serve notice of entry of judgment upon the appellants, and, therefore, they did not set the time running within which the appealing defendants, as to them, must serve notice of appeal. The case of West v. Place (80 Hun, 256) is an authority for the proposition that “ an appeal * * * must he dismissed * * * where the notice of appeal was not served upon the parties to the action, who are adverse to the appellants, and whosé interests are opposed to theirs on the appeal, when a review as to such adverse parties is necessary to a complete and proper determination of the appeal, and when the time has expired within which to appeal.”

But in that case in which this rule was enunciated, it appeared that the adverse parties had served “ proper written notice of the entry of the judgment or decree upon the appellants.”

The precise question presented here as to the right to dismiss an appeal because of the failure to serve adverse defendants, was considered in Kilmer v. Hathorn (78 N. Y. 228) wherein it appeared that one of several codefendants neglected to serve notice of-entry of judgment and notice- of appeal was served by the other defendants upon the plaintiff only, and the plaintiff moved to dismiss the appeal. The court held that “ the notice of appeal was good and the appeal was good as to those prevailing parties who ' served notice of judgment.” However, authorities are unnecessary in view of,the provisions of section 1303 of the Code, which reads : “ Where the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from, the court * * * may * * * permit the omission to be supplied.” -

It will be seen, therefore, that the appellants having served their notice of appeal on the plaintiff and the ■ county clerk, -have placed this court in a position where it has jurisdiction, and, therefore, as it would not be disposed under the circumstances to dismiss the appeal, the only question remaining is as to the conditions which should be imposed upon the appellants for their neglect to serve notice of appeal upon their adverse codefendants. - As to them the appellants were not in default, and unless'such defendants should serve notice of entry of judgment time would never commence within which the appellants would be obliged to appeal. But we think that the plaintiff has a right to insist that the appellants shall proceed with their appeal.

We have not overlooked the contention that the legal effect of the appellants having obtained and had inserted in the judgment taxable costs and allowances, deprived them of their right to appeal; but we do not think that this position can be sustained.

We think that under the circumstances the proper disposition to make will be to deny this motion without costs upon condition that the appellants within ten days servé their notice of appeal on the other defendants respondents, notwithstanding the fact that they did not serve notice of entry of judgment, because as to the plaintiff we think the defendants appellants should use some diligence to the end that this appeal may be seasonably brought on for hearing.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Motion denied on conditions stated in opinion. Settle order on notice.  