Beldock, P. J., Rabin, Hopkins and Benjamin, JJ,, concur; Ughetta, J., dissents and votes to affirm the judgment and order, with the following memorandum: On the initial hearing held at Special Term, the parties were afforded a full opportunity to argue the merits of the objection sustained by the inspectors of election to these military ballots. Special Term sustained the objection. This court affirmed, one Justice dissenting. The dissenting memorandum stated that the grounds for the objection were insufficient and that “these tw,o unopened ballots should be opened and their validity determined.” The Court of Appeals held that “the grounds on which the Election Inspectors refused to open these ballots were insufficient.” In view of the limitation of its jurisdiction, however, the Court of Appeals remitted the proceeding to Special Term “to pass in the first instance on the validity of the two ballots numbered 33-1 and 33-2.” What the Court of Appeals intended by its remission is the subject of this appeal. I agree with Special Term that the remittitur meant only that the physical ballots should be examined to see that they were properly marked and not subject to objection as to form; that any question as to the capacity of these voters to vote, as distinguished from whether they executed their ballots properly, was finally determined by the Court of Appeals and is now foreclosed. The majority opinion finds special significance in the fact that the proceeding was remitted to Special Term to pass on the validity of these ballots “in the first instance”. I fail to see why. The proceeding was remitted to Special Term to pass on the validity of these ballots “in the first instance ” because it is the Supreme Court alone which possesses the statutory jurisdiction “to summarily determine any question of law or fact” *677arising out of election disputes (Election Law, § 330). The Court of Appeals reviewed the question of law litigated at Special Term and reviewed in this court; that is, whether the objection by the election inspectors was properly sustained. Beyond dispute, the Court of Appeals held that the objection should not have been sustained and that the persons who cast these two military ballots should have been permitted to vote. Obviously, however, since the two ballot envelopes had never been opened, no question as to the proper execution of the ballots was or could have been before either this court or the Court of Appeals. The only court which had jurisdiction to determine “in the first instance” whether, as a matter of law or fact, the ballots had been properly executed was the Supreme Court at Special Term. The majority find it “ abundantly clear ” from the remittitur, as amended, that the Court of Appeals left open for determination by Special Term every other issue affecting the validity of the ballots, except that the removal of the parents from the district was not sufficient to bar this military voter and his wife from casting their ballots. In my opinion, the amended remittitur of the Court of Appeals merely expresses what was necessarily to be inferred from the original remittitur; that is, that the removal of the parents from the district was not sufficient to support an objection to these ballots. Emphasizing the words “in and of itself” in the amended remittitur does not convert this explicit statement of its prior holding into a wide-ranging authorization by the Court of Appeals to litigate again whether the inspectors should have sustained the objection to these ballots. The public interest demands that election disputes be settled without delay. A public office which the People voted to fill lies vacant. In order to facilitate the resolution of election disputes, section 330 of the Election Law provides for a summary judicial review of the questions of law and fact which have arisen. In this proceeding, one of the questions raised was whether the objection to these ballots was properly sustained. The Court of Appeals held that it was not. What appellant now asks, and this court permits him, is an opportunity to raise the question whether the objection would have been proper had the inspector of elections known certain additional facts. The unalterable fact of the matter, however, is that the inspectors did not know of these additional facts and they can have no bearing on the propriety of the objection that was made. Appellant was given a full opportunity on the initial hearing to adduce evidence that the objection was well taken. The majority excuse his failure to "do so on the ground that the election inspectors sustained the objection on insufficient grounds and appellant was entitled, therefore, to rely on the sufficiency of those grounds. Many litigants have rested their cases on facts which they and lower courts deemed sufficient only to discover that a higher court disagreed. Such reliance does not entitle the litigant to another opportunity to try out the issue. All of the information which appellant now seeks to offer existed and could have been discovered and brought to the attention of Special Term on the original hearing. Appellant’s brief admits that investigation as to the residence of these voters was made only after the Court of Appeals remitted the proceeding to Special Term. If that is so, obviously there was no reliance on the position taken by Special Term which lulled appellant into not offering further proof on the original hearing. Courts do not exercise their discretion to reopen proceedings at the request of litigants who failed to seek out material evidence which existed and could have been discovered with reasonable diligence (CPLR 5015, subd. [a], par. 2; cf. Fliegel v. City of New York, 280 App. Div. 898; Travitzky v. Schamroth, 277 App. Div. 1018). I would affirm.