Mississippi Shipbuilding Corporation v. . Lever Bros. Co.

143 N.E. 744, 237 N.Y. 565, 1924 N.Y. LEXIS 857

• Court: New York Court of Appeals
• Decided: January 15, 1924
• Status: Published

Opinion

Per Curiam.

On the argument of this case and in the briefs no reference whatever was made to the law which should govern the contract in question. The contract was made and executed in New York, and we assumed in the absence of comment upon so vital a point that the law of New York governed. We, therefore, in our opinion referred to section 130 of the Personal Property Law (Cons, Laws, ch. 41) and its requirements regarding notice.

As to notice we said: “We suggest these matters without attempting to decide them as we cannot tell what the evidence may be on a new trial. Kerr may appear as a witness. The point has not been briefed or argued.”

The respondents now ask for a re-argument on the grounds: First, that the contract was a Mississippi contract; and second, that if it were a New York contract, section 130 does not apply.

As above stated, neither of these points was referred to or discussed on argument or in brief.

As a new trial would have to be granted even though the respondents in these two particulars were right, we shall deny the motion for re-argument, without attempting to decide these questions. On a retrial the court will pass upon these matters as the facts then appear.

This has been the rule of this court upon motions for reargument where it is sought to present questions not earlier discussed or considered.

Motions denied, without costs.