Groonstad v. Robins Dry Dock & Repair Co.

Blackmar, P. J.:

The judge presiding at the trial charged the jury the rule of apportionment of damages for contributory negligence. To this the defendant excepted. However, when the case came before this court, no point as to that exception was made by the defendant in its brief or oral argument. This court, therefore, did not consider that question but affirmed the judgment, the opinion ending with these words: “No error being found in the exceptions urged and considered, and no further points being presented by the appellant, the judgment and order should be affirmed, with costs.”

A motion for reargument, under rule 21 of the rales of this department, may be made on the ground that the court has overlooked or misapprehended points made by counsel. In this case the court did not overlook the fact that that question was in the case, and the concluding sentence in the opinion was inserted to show that the affirmance was based solely on the consideration of the points presented and argued. Our judgment is that the court should not search the record for points that were not raised by counsel, both because the respondent has had no opportunity of answering such points and because this court should assume that appellant has good reasons for not presenting them. There is, therefore, no case made for a reargument.

Whether under such circumstances the Court of Appeals, having jurisdiction to consider all questions of law, would consider a point that has not been raised or presented in the Appellate Division and, therefore, has not been passed upon by this court, is for that court to determine.

Under these circumstances we think the proper course is to deny the motion for reargument on the ground that this court has not overlooked or misapprehended any point, and to deny the motion for leave to appeal to the Court of Appeals upon the ground that we . cannot certify that there is a question of law which ought to be reviewed by that court, for it is for that court to determine whether it should consider a question of law that was not presented to the Appellate Division.

The motion should be denied, with ten dollars costs. Stay for thirty days to permit application to the Court of Appeals.

Kelly, Manning, Kelby and Young, JJ., concur.

Motion for reargument or for leave to appeal to the Court of Appeals denied, with ten dollars costs. Stay for thirty days to permit application to the Court of Appeals.