We all learn, starting sometime in law school, how critical it is to preserve one's arguments and objections in the nisi prius court.
Even in the appellate division, the familiar rule on an appeal in a civil case is that the appellate court will generally consider only those arguments and claims that were preserved for appellate review by timely assertion or objection in the nisi prius court.
22) The preservation prerequisite is, in other words, a rule of practice from which the appellate division can, and sometimes does, depart for reasons such as the unpreserved error was so significant that it was "fundamental," (23) or of such nature that it could not have been obviated by timely objection, (24) or that review is warranted in the interests of justice, (25) or, in at least one case, the legal argument that prevailed at nisi prius was "patently" lacking in merit.
29) As noted above, the appellate division affirmed the dismissal of the complaint, but did so on a ground that had not been argued at nisi prius or even in the appellate division itself.
Nemo einem nec se nec rem publicam recte admisitrabit, nisi prius et iis virtutibus, quae vitam moresque emendant, animum ab omin corporea labe expiaverit et iis, quae rerum maximarum cognitionem praebent, illum iam purgatum ita illustraverit, ut quid ipse, quid reliqui homines sint, ad quam rem a summo deo producti recte noverit.
Quis enim iuste vivere poterit, nisi prius quid iustum sit et iustum quod sit naturae nostrae consentaneutii esse proptereaque ageiiduni nieiite investigaverit?