A motion for re-argument is made in this case upon the ground that the appellant was defeated in this court upon a question which was not argued in the courts below. In attempted support of the motion appellant correctly states certain principles applicable to the consideration of appeals. It is accurate in asserting that as general rule a party who has obtained a judgment will not be allowed in this court to sustain that judgment upon grounds which were not considered in the courts below. It is also true that a respondent will not be permitted to sustain a ruling in its favor upon some reason not considered in the lower courts and which if there presented could have been met and obviated.
This case, however, is not subject to the application of these principles. The appellant has been defeated upon a proposition of law which appeared upon the face of the record and which could not have been avoided if brought *Page 579 to the attention of the appellant in the courts below. (Cook v.Whipple, 55 N.Y. 150, 157; People v. Bradner, 107 N.Y. 1,4; Murdock v. Ward, 178 U.S. 139.) The appellant does not contend that considerations could have been advanced there which were not available here, but only that this court has reached a wrong decision upon the question.
But aside from this, if we should assume that under ordinary circumstances the appellant would have the right to insist that the proposition upon which it has been defeated in this court should not have been considered because not urged in the lower courts, it has waived and has now lost the right to take this position. The respondent in its brief upon the argument of the appeal expressly and specifically urged the proposition considered by this court and upon which the appellant has been defeated. The appellant neither argued that this proposition could not be considered in this court for the reason now suggested nor that the proposition of law itself was erroneous. It absolutely and entirely ignored the point thus presented by the respondent and made no answer whatever to it. It now says that the proposition was argued by the respondent upon its brief in a perfunctory way. This may be true. It may not have been argued in a thorough or efficient manner, but nevertheless it was presented to the court and the duty thrown upon the latter of examining and deciding the question.
Under these circumstances it is evident that no reason is presented which justifies this court in granting the motion for re-argument. In addition we do not discover in the brief upon this motion anything which leads us to believe that the decision already made was erroneous or would be changed upon re-argument.
The motion should be denied, with ten dollars costs and necessary printing disbursements.
All concur.
Motion denied. *Page 580