Holland v. Baker
| Decision Date | 05 June 1968 |
| Citation | 30 A.D.2d 136,290 N.Y.S.2d 651 |
| Parties | , 33 A.L.R.3d 318 John J. HOLLAND et al., Appellants, v. Floyd BAKER et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
E. Stewart Jones, Troy, for appellants.
Friedman, Ladd & Maksail, Schenectady, (Harold A Friedman, Schenectady, of counsel), for respondents.
Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and STALEY, JJ.
The plaintiffs in certain personal injury negligence actions appeal from an order of the Supreme Court at Special Term which granted a motion to strike from plaintiffs' bills of particulars certain color photographs annexed thereto which allegedly depict plaintiffs' personal injuries.
Respondents argue 'that the purpose of attaching the pictures to the bills of particulars is in reality an attempt to get them before the jury by other than accepted means.' Appellants reply that although in any case 'the bill of particulars is before the Court it does not constitute proof of any fact and accordingly is not admissible in evidence as such; nor do photographs or any other exhibits become evidence by their attachment to a bill of particulars.' We find the use of the photographs objectionable on somewhat broader grounds than those discussed by either party. The purpose of a bill of particulars is, of course, that of specification, in this instance with respect to the personal injuries and damages pleaded; this by amplifying the pleading, defining the issues and limiting the proof, thereby enabling the adversary to prepare for trial, while secure from surprise, and at the same time aiding the court in the expeditious conduct of the trial; the purpose is not to produce evidence or to supply evidentiary detail. (See 6 Carmody-Wait 2d, New York Practice, § 36:3, pp. 181, 182; 3 Weinstein-Korn-Miller, N.Y. Civ.Prac., pars. 3041.03, 3041.11.) We doubt very much whether the attorneys who argue for the right to attach photographs to their bills of particulars would concede to their adversaries a reciprocal right to effectively demand the attachment thereto of all available photographs.
Inasmuch as the reception of evidence is always within the control of the trial court, we are less concerned with the possibility of an attempt to make improper use of a bill of particulars as evidence * than with appellants' departure in other respects from the concept and function of a bill of particulars. A bill of particulars in a personal injury action shall, upon demand, set forth a '(s)tatement of the injuries and description of those claimed to be permanent' (CPLR 3043, subd. (a), par. (6)). We do not believe that a pictorial representation constitutes a 'statement' or a 'description', within the intent of this provision. Otherwise, untoward results and frustrations of such intent are both possible and likely. Thus, for example, a...
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