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it has been held that the tenant is not precluded from controverting the accuracy of the items therein set forth. 45

Where the bill of particulars is offered in evidence, it takes its place in the case just the same as any other testimony to be considered by the court or jury. The bill of particulars need not be accepted as true in its entirety. The court or the jury, as the case may be, which is called upon to determine the issues of fact, may and should determine those issues upon a consideration of all the testimony. The court or jury may believe some fact or facts of the bill of particulars and disbelieve another fact or facts of the same document. 46

The original pleading or bill of particulars may be offered in evidence, even though there is an amended one filed to take its place. 47

Where only a part of a pleading or bill of particulars is offered in evidence by the defendant or tenant, the landlord or plaintiff may offer so much of the remainder as tends to explain or qualify what has been received, and that is to be deemed a qualification which rebuts and destroys the inference to be derived from or the use to be made of the portion put in evidence. 48

The statement is frequently made that the pleadings in a case may always be regarded in evidence, and to a certain extent this is true. To be accurate, the rule should be stated that "statements, admissions and allegations in pleadings are always in evidence for all the purposes of the trial. ...

46 Graeber v. Nichols, 190 N. Y. Supp. 198.
40 Whitney v. Town of Ticonderoga, 53 Hun, 214, aff'd 127 N. Y. 40.
47 Fogg v. Edwards, 20 Hun, 90.

18 Grattan v. Met. Life Ins. Co., 92 N. Y. 274, 284, citing Rouse v. Whited, 25 N. Y. 170; Forrest v. Forrest, 6 Duer, 126-7; Gildersleeve v. Landon, 73 N. Y. 609. See also Honstine v. O'Donnell, 5 Hun, 472.

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They are made for the purpose of the trial, and are before the court and jury, and may be used for any legitimate purpose.'

The more practical question in which we are interested is,-how far does the application of this rule avoid the necessity of proof of the statements in the bill of particulars?

For the purpose of defining the issues of the trial, for the purpose of disclosing the claims of the landlord or for the purpose of any admissions therein contained, they may undoubtedly be regarded before the court and jury without having been formally put in evidence.60 For any such purpose, it would be proper also to read necessary parts of the bill of particulars to the jury.

The bill of particulars cannot, however, be regarded as proof of the facts therein contained in the landlord's favor, and cannot, we think, be regarded as evidence for any such purpose. 51 To hold otherwise would thwart one of the objects of the statute. If, for example, we assume a case where a landlord, before he can recover rent agreed upon, is obliged to overcome the presumption that the rent is unjust, unreasonable and oppressive, 52 because it was increased over what it was a year prior, all that the landlord would be obliged to do to overcome this presumption would be to file a bill of particulars, carefully prepared to show either a deficit in the operation of the property or a wholly inadequate return on the investment. The bill of particulars, if it be regarded in evidence, would overcome the presumption referred to, and the landlord could rest his case

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49 Holmes v. Jones, 121 N. Y. 461, 466, citing White v. Smith, 46 N. Y. 418; Tisdale v. D. & H. C. Co., 116 N. Y. 416.

50 Abbott's Trial Evidence, page 385. 61 Widelitz v. Rosenthal, 189 N. Y. Supp. 85 (App. Term, 1st Dept.). 62 Chapter 944, Laws of 1920, as amended by Chap. 434, Laws of 1921, $3.

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at the trial without calling a witness or even submitting to a cross-examination. This, certainly, was not the intent of the Legislature in enacting this requirement of a bill of particulars. There must be proof offered, we think, of the facts stated in such a bill, before the landlord may rely thereon.

In the case of Widelitz v. Rosenthal, 53 which was an action to recover rent, the court, after pointing out that "the usual bill of particulars was filed” and that “no proof whatever was submitted by plaintiff on any items of the bill,” reaches the conclusion that “the record shows that there was no evidence from which could be determined the reasonable rental value of the property.” The opinion then goes on to say, “and yet in that situation the learned trial judge, over defendant's objection and exception, permitted the jury to take and consider the bill of particulars in determining the issue. A verdict rendered on such facts has no foundation.” The judgment was accordingly reversed.

Again, in the recent case of Starzer Realty Corporation v. Goodman, 54 which likewise was an action to recover rent, the court says, “while a certain amount of informality may probably be unavoidable in cases of this kind, nevertheless it is a judicial proceeding and no action not warranted by the testimony can be taken by the court.”

The case of Miller v. Avon 55 is of interest in this connection. There the trial justice said at the beginning of plaintiff's proof: “It is not necessary to prove the bill of particulars. It has been sworn to and is part of the record in this case.” To this plaintiff's counsel said, "Well, that is all”; and defendant's counsel proceeded to cross-examine

63 189 N. Y. Supp. 85 (App. Term, 1st Dept.). 64 189 N. Y. Supp. 126 (App. Term, 1st Dept.). 66 188 N. Y. Supp. 457.

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plaintiff's witness. The Appellate Court, in reversing a udgment for defendant, said:

“From the statement made by the court ... counsel was authorized in concluding that the items sworn to in the bill of particulars were before the court and would be considered in evidence in support of plaintiff's claim.'

The question of the propriety of the ruling of the trial justice was not raised in this case, all parties apparently acquiescing in the statement that the bill of particulars be regarded in lieu of the testimony of the witness as to the facts sworn to in the bill of particulars. It should be noted that the defendant had an opportunity to cross-examine as to the bill.

It has been held that the submission of pleadings to a jury and their taking them to the jury room is improper and constitutes reversible error. 56

We conclude that if the defendant or tenant insists upon strict proof on the part of the plaintiff or landlord, the facts stated in the bill of particulars must be established by competent evidence. The interests of justice are in most cases sufficiently served and the time of the court and jurors considerably saved by proof merely of the accuracy and correctness of the bill of particulars by some witness having knowledge of the facts, and the admission of the bill of particulars into evidence upon that witness' testimony, as representing the direct examination of the witness. Then, cross-examination of the witness may be permitted in respect to such matters or items in the bill as are the subject of dispute. This practice usually answers the purpose very well and is in the interest of expedition. The jury may then have the figures before them when they retire for the purpose of deliberation at the conclusion of the trial, if the trial

56 Drew v. Andrews, 8 Hun, 23.

is one had before a jury. It is extremely difficult and in many instances quite impossible for juries intelligently to follow testimony in respect to a mass of figures, really an accounting, without a statement of any kind before them either during the trial or at the time they are called upon to render a decision. For this reason, it is advisable, if it may be done without question of the propriety of the action, that the bill of particulars be submitted to the jury when they retire to consider the verdict.

TEST OF ACCURACY OF BILL

The tenant as a rule is at a disadvantage to judge of the accuracy of a bill of particulars, even though a proper one is filed by the landlord. As a rule he is unfamiliar with the details of the management of real estate. As an aid in testing the general accuracy of a bill of particulars, statements on this subject are here inserted in the footnotes from two sources, believed to be wholly trustworthy and possessed of very considerable experience.

The first statement, designated “A,” has been prepared by Captain Charles A. Goldsmith, a real estate man of experience, at one time a member of the Mayor's Committee on Rent Profiteering of the City of New York, who has adjusted many hundreds of cases to the satisfaction of landlords and tenants and who has acted as a conciliator in rent disputes at the request of many of the Justices of the Municipal Court of the City of New York. The second statement, designated "B,” has been prepared by Mr. Martin F. Huberth, of the real estate firm of Huberth & Huberth, a man of undoubted probity, versed in the management of apartment houses.

a

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