This motion is made upon the assumption that the plaintiff has given, in good faith, notice of appeal from the order, but has omitted, through mistake, to do an act necessary to perfect the appeal, under the provision of § 827 of the Code. The part of the section in question is as follows : “ When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to-perfect the appeal, or to stay the proceedings, the court may permit an amendment on such terms as may be just.”
The question is, whether the plaintiff has given notice of the appeal within this section ? The same section provides how an appeal shall be made. It is simply by the service of a notice in writing on the adverse party and on the clerk with whom the judgment or order appealed from is entered—stating the appeal from the same, or some specified part thereof. Then follows the provision above quoted. The notice of appeal was served on the attorney *23of record of the defendant in whose favor the order was entered. The omission was in not serving the notice on the clerk.
To give notice of appeal in order to give the court jurisdiction to allow the amendment under the section, means, to make out a notice in writing and serve it upon the adverse party and on the clerk. To serve it upon either, and not on the other, is not giving notice of the appeal within the meaning of the section. This I think evident from what the omission is from which the court has power to relieve the party—which is, to omit to do any other act necessary, &c. Other than what ? Clearly than to give notice of appeal. No other interpretation is admissible. The only construction which could aid the plaintiff would involve the following absurd reading of the section: “ When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to give notice of such appeal as required by this section, or to do any other act necessary,” <fcc. The section is general, and relates to all appeals provided for by the Code in civil cases to which its provisions, in whole or in part, can be made to apply; and that part of it under which the plaintiff seeks relief, was intended to apply to such cases as an appeal from a judgment of the supreme court to the court of appeals, where the party appealing has served written notice upon all the proper persons, but has neglected by mistake to give the undertaking, or to make the deposit, as required by § 334, without which such appeal is not available for any purpose ;—to a case where an undertaking is necessary to have the appeal operate as a stay of proceedings, and such an undertaking has been omitted by mistake ;—where the judgment appealed from directs the assignment or delivery of documents or personal property, and the party appealing has inadvertently omitted compliance with such directions, which is required by § 336, as a, condition of the appeal operating as a stay of proceedings, *24together with all other cases where something necessary to be done, besides giving the notice of appeal, has been omitted from the same cause, and which is necessary to perfect the appeal, or to stay the proceedings.
The foregoing views lead inevitably, I think, to a denial of the present motion. The motion is therefore denied.