According to section 327 of the Code, “ an appeal must be made 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.” And the main question now presented is whether the three defendants, who have not appealed from the judgment, are to be deemed adverse parties, so as to entitle them to notice of the appeql. Their interests in the case are certainly adverse to those of the appellants. They are as much interested in sustaining the judgment as the appellants are in reversing it, and the only interest the plaintiffs have in the controversy is to have it ended with the least possible expense and delay. The chancellor, in determining who was the adverse party within the meaning of a section of the Revised Statutes and a rule of his court, held that the adverse party was the party whose interest in relation to the subject of the appeal was in conflict with the reversal of the order or decree appealed' from, or the modification sought by the appeal (Thompson agt. Ellsworth, 1 Barb. Ch. Rep. 624). And I am of the opinion the words “ the adyerse party,” in section 327 of the Code, should be construed to embrace parties to the action, whose interests in relation to the judgment or order appealed from are in conflict with the reversal or modifica*449tion sought by the appeal, and that the defendants in this case who have not appealed from the judgment, are adverse parties within the meaning of that section of the Code, and consequently were entitled to notice of the appeal. And as their interest might be affected by the manner the case and exceptions were proposed and settled, I think their attorney should have been served with a copy of the proposed case and exceptions so they could have proposed amendments thereto, and been heard on the settlement of the case, exceptions and amendments. It follows that the case is irregularly on the calendar as against the defendants who have not appealed from the judgment.
The next and only remaining question, is whether the appellants can have relief which will enable them to make their appeal effectual and valid as to all the parties to the action. Section 405 of the Code is similar to a rule of the former supreme court, which was held not to preclude the court from permitting a case not made within the time prescribed by it, to stand as if made within such time. (See Hawkins agt. The Dutchess, &c. Co. 7 Cow. 467; 2 Grah. Pr. 2d ed. 331.) And I am of the opinion this court possesses the power to allow the appellants'" attorney in this action to serve a copy of the case and exceptions upon the attorneys of the defendants who have not appealed, and have the same re-settled, on notice to them and the plaintiffs’ attorney.
It is provided by section 327 of the Code, “ where a party shall give in good faith, notice of an appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just.” The appellants’ attorney gave his notice of appeal in good faith. It was duly served on the plaintiffs’ attorney, and also upon the clerk with whom the judgment was entered. But he omitted through mistake, to serve the notice upon the attorneys of the defendants *450who have not appealed, which act was necessary to perfect the appeal. It seems to me that giving the appellants' attorney permission to serve his notice of appeal on the attorneys of the defendants who have not appealed, will not be enlarging the appellants’ time to appeal, and that the court is authorized to grant this relief to the appellants by section 321 of the Code. I think the Code itself, as well as pleadings, should be construed “ with a view to substantial justice between the parties ” (§§ 159, 467).
My conclusions are that the cause should be strupk from the calendar, with $10 costs of the motion to be paid by the appellants, and that upon paying $20 costs to the plaintiffs’ attorney, and said $10 costs to the attorneys of the defendants who have not appealed, within twenty days after notice of the order, the appellants should have leave to serve a copy of the notice of the appeal and a copy of the case and exceptions on the attorneys of the defendants who have not appealed, who should have ten days thereafter in which to propose amendments thereto, and that the case and exceptions should, if amendments are thus proposed, be re-settled upon notice to the attorneys so proposing amendments and the plaintiffs’ attorney, arid if re-settled, the same as re-settled should be substituted in the judgment roll in place of the same now in it. But if no amendments should be proposed to the case and exceptions within the time aforesaid, then the case and exceptions as now settled should remain in the judgment roll, and the appeal should be heard on the papers as they now stand, with a copy annexed thereto of the notice of the appeal, directed to the attorneys of the defendants who have not appealed.