West v. Place

30 N.Y.S. 14 | N.Y. Sup. Ct. | 1894

MAYHAM, P. J.

An action was prosecuted in this court by the executor and trustee named in the will of Isaac V. Place, deceased, for a judicial construction of that instrument. All "of •the legatees and devisees named in the will of the testator were made parties to the action, and none of them took issue, by their answer, with the allegation of the complaint, except five, who answered, denying the validity of the will, and demanded that the same be adjudged void, while all the other defendants who appeared by their answer admitted the validity of the will. The will, by the decree of the court, was declared valid, and all of its provisions sustained, and construed in accordance with its provisions, upholding all the devises and bequests therein. From that decree the five contestants appeal, naming as respondent, in their notice of appeal, only the executor, who was plaintiff in the action, and serving the notice of appeal only on him and the clerk of the county with whom the records of the decree are filed and entered.

This appeal seeks to reverse the decree establishing the validity of the will, and to have it adjudged invalid and void, without serving a notice of appeal upon those defendants who are beneficiaries under the will, and who, by their separate answer, had asked that the will be sustained. The will and motion papers show that a reversal of the decree would deprive some of the defendants, who are not made parties to this appeal, of any share in the estate of the testator. It is therefore insisted that they are necessary parties to the appeal, and, as they gave proper written notice of the entry of the judgment or decree upon the appellants, the notice of appeal should have been served upon them, and that without making them respondents in the appeal no determination of the question raised by it can be had, and, the time limited for the service of a notice of appeal on them having expired, the appeal is irregular, and should be dismissed.

Section 1300 of the Code of Civil Procedure prescribes the inode of bringing appeals, and provides that it must be by serving a notice upon the attorney of the adverse party and the clerk. The defendants whose interests are adverse to the appellants, and who have appeared and answered by answers hostile to them, must, we think, be held to be adverse parties to the appellants, within the meaning of section 1300 of the Code. The notice of appeal should therefore have been served upon the defendants who appeared and interposed answers hostile to that of the appellants, and the failure to do that was a failure to fully comply with the statute under which only appeals can be taken. Section 1351 of the Code of Civil Procedure limits the time within which an appeal can be taken to 30 days after the service of a copy of the judgment or order upon the appellant’s attorney, and written notice of the entry thereof; and section 784 of the same Code expressly prohibits the court or judge from enlarging the time for taking an appeal. The appeal in the case not having been served upon the defendants who were, as to the appellants, adverse parties, and whose interests are adverse to that of the appellants on the appeal, and a review as to such parties being necessary to a complete and proper determination of the appeal, and the time having ex-' pired for appealing, as to such adverse parties, with no power in this court to relieve the appellants from the consequences of their delay, this appeal must be regarded as irregular and invalid, and must therefore be dismissed. Appeal dismissed, with costs to the respondent, together with costs and disbursements on this motion. All concur.