A.

ACCEPTANCE.

Ses 1 OF EXCHANGE AND PROMISSORY NOTES, 1, 2.

ACCUMULATION.

1. A testamentary gift to children, made to take effect upon the termination of a particular estate, or upon the death of a third person, is a bequest to children as a class, and embraces not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution. Kilpatrick v. Johnson, 322

2. Held, therefore, that a direction in a will for the accumulation of the interest upon money, during the life of the testator's daughter, and that the interest so accumulated should, on the death of the danghter, be paid to her children, is void under 1 R. S., 773, § 3, because not made for the benefit of persons in being at the time of the testator's death, and because the children are not required by the terms of the will to be minors at the death of the testator, or while the interest is accumulating. id

[When rights of action survive and are assignable.]

3. The interest of a widow in the damages which may be recovered in a suit under chapter four hundred fifty of 1847, against one whose wrongful act, neglect or default has caused the death of her infant son, is one capable of assignment. It is to be received by her in the course of admir istration, and stands on

1. The Court of Appeals has the
power to enforce a mutual stipula-
tion, made between the parties in
the court from which the appeal is
taken, by which they agreed that
the decision in such case should be
final, and that no appeal should be
taken. The duty of hearing ap-
peals involves the jurisdiction to
determine whether a particular case
is properly before the court on ap-
peal, and to dismiss it, if brought
in violation of the agreement of
the parties. Townsend v. The Mas-
terson, Smith and Sinclair Stone
Dressing Company and others, 587

2. An appeal to the Supreme Court,
at general term, from a decision of
a julge upon a trial had before

him, without a jury, must be upon
a case containing distinct statements
of the facts, as found by the judge,
of the conclusions of law pro
pounded by him, and of the seve
ral exceptions to his findings of
fact and conclusions of law respec-
tively, together with so much of
the evidence as is necessary to a
proper understanding of the ques-
tion intended to be raised upon the
appeal. It is not sufficient to refer
to the decision of the judge, as
contained in the judgment roll, for
the conclusions of fact and of law,
nor to any paper separate fron,
and not constituting a part of the
case for the exceptions thereto.
Smith v. Grant,
590

3. When an order, which the Court
of Appeals has no jurisdiction to
review, and the papers on which
such order was granted by the
court below, are incorporated in
the appeal book, they will be strick-
en out upon motion.
id

4. The plaintiff, in an action to fore-
close a mortgage, obtained judg-
ment at special term of the Supe-
rior Court of Buffalo, upon the
ground of the frivolousness of a
demurrer interposed to the com-
plaint, and this order for judgment
was affirmed by the Superior Court
at general term. The plaintiff then
obtained a computation of the
amount due him, and judgment
for a foreclosure and sale, at the
special term. From this judgment,
and from the order at the general
term affirming the judgment upon
the demurrer, the defendant ap-
pealed to the Court of Appeals;
Held, that such appeal would not
lie. The defendant should, after
the final judgment at the special
term, have appealed therefrom to
the Superior Court at general term,
when, in case of affirmance, he
might have appealed to this court.
The Hollister Bank of Buffalo v. Vail
and another,

593

5. Prior to May 6, 1857, when the
amendment of the Code of Proce-
dure took effect, allowing an appeal
upon certain conditions, from an
order granting a new trial, a new
trial was granted by the Supreme
Court, on the application of a de-

7. Under the charter of 1843 (ch.
132 of 1843), the common council
of Buffalo were required to cause
the damages sustained by the
owners of land adjoining a street
in consequence of a change of the
grade thereof, to be assessed by the
same assessors, and in the same
proceeding, as the expenses of
working the grade and paving the
street. Such expenses having been
assessed and collected; Held, that
the order of the common council for
a subsequent and separate assess-
ment of the consequential damages
of the owners of lands upon the
street, was absolutely void. Howell
and Christopher v. The City of
Buffalo,
512