In the Matter of Proving the Last Will and Testament of Harriet L. Marks, Deceased. Juliet C. Isham, Appellant; Alvah S. Pearson, Executor, etc., of Harriet L. Marks, Deceased, Respondent

In the Matter of Proving the Last Will and Testament of Harriet L. Marks, Deceased. Juliet C. Isham, Appellant; Alvah S. Pearson, Executor, etc., of Harriet L. Marks, Deceased, Respondent. Third Department, November 11, 1908. Appeal from Surrogate’s Court — practice — motion to bring in interested parties. A motion to amend a notice of appeal from a surrogate’s decree on probate by adding the names of persons who had not appeared, but who have, or claim to have, a right or interest in the subject-matter of the decree, and for leave to serve the amended notice upon all parties nunc pro tunc, is not a motion to perfect an appeal under section 1303 of the Code of Civil Procedure, but is one under section 2573 of the Code, and should be made in the appellate court and not before the surrogate. But said motion will not be heard until the appeal is perfected by proper service upon those who were parties in the Surrogate’s Court. Kellogg, J., concurred in result only. Appeal by the contestant, Juliet C. Isham, from an order of the Surrogate’s Court of the county of Otsego, entered in said Surrogate’s Court on the 4th day of August, 1908, denying a motion to cure a defect in the service of a notice of. appeal from a decree theretofore entered in said Surrogate’s Court. Walter F. Wood and Charles L. Burr, for the appellant. James W. Barnum, for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: The notice of appeal designates the' order appealed from by the date of its entry, but describes it as the denial of a motion to cure a defect in service of notice of appeal, and this is what the appellant’s counsel mainly argued before the court. He has assumed that his motion was made to perfect an appeal under section 1303 of the Code of Civil Procedure. An examination of the record, however, shows that lie has made no such motion. By the order to show cause by which this motion was instituted the appellant asks “ to amend her notice of appeal heretofore filed and served in this proceeding by adding thereto the names and addresses of all persons who have not appeared in this proceeding and who have or claim to have in the subject-matter in the decree herein a right or interest which is directly affected thereby and which appears by the face of the papers presented in the Surrogate’s Court,” and to serve said amended notice upon all parties to the action nunc pro tuno. This is clearly a motion contemplated by section 2573 of the Code of Civil Procedure. By that section the parties designated in the order to show cause are made necessary parties to the appeal. It is therein prescribed that they must be brought in. by an order of the appellate court, which must prescribe the notice that must be given to them. The surrogate properly held, therefore, that the application therefor must be made to the appellate court and not to the surrogate. Such a motion moreover would not be entertained until the appeal is perfected by proper service upon those who were parties in Surrogate’s Court. Upon the merits of such an application we are not called upon at this time to express an opinion. The order should, therefore, be affirmed, with ten dollars costs and disbursements. All concurred; Kellogg, J., in result. Order affirmed, with ten dollars costs and disbursements.