The proceeding before this court is a motion by defendant Jack Goldstein limiting the amount of verdict to the amount claimed by the plaintiffs in their April 9, 1970 statement of claim for damages.
This matter came on for trial by jury on September 13, 1972. The jury returned a verdict on September 23, 1972 in favor of plaintiff Esther Perdomo and against defendant in the amount of $250,000, and in favor of plaintiff Proscipio Perdomo and against defendant in the amount of $75,000.
On December 1, 1972 this court heard defendant's motion for new trial, which motion was denied. The proceeding before this court on December 15, 1972 came about on defendant's objection to plaintiffs' entry of judgment. Pursuant to R. 4:42-1(b) this court granted hearing for argument to decide the issues presented and to settle the form of order for the entry of judgment.
Pursuant to R. 4:5-2, previously R.R. 4:8-1, plaintiffs submitted to defendant a statement of damages claimed in the amount of $300,000. At trial a jury verdict was entered in the sum of $325,000 in favor of Esther and Proscipio Perdomo against defendant.
The question to be decided by the court at this time is: Are plaintiffs bound by their statement of $300,000 for damages claimed?
The pertinent part of R. 4:5-2, reads:
* * * Upon service of a written request by another party, the party filing the pleading shall within 5 days after service thereof furnish the requesting party with a written statement of the amount of damages claimed, which statement shall not be filed except on court order.
Plaintiffs, as requested, submitted to defendant the statement of damages. The statement was never filed and no court order was ever issued pertaining to the statement.
Defendant's argument is based on a comment in 2 N.J. Practice 63 (1969), which states:
However, any argument in favor of plaintiffs being limited to the statement of damages would have to be strengthened by the fact that the statement was part of the pleadings. This is not the case. Relative to this, one has only to look at the history of the rule in question to see that such a statement was never intended to be part of the pleading. R. 4:8-1, as amended, effective September 4, 1957, although dealing specifically with motor vehicle actions, at that time contained this section:
(b) A pleading which sets forth a claim for damages for personal injuries or property damage to motor vehicles arising out of the ownership or operation of a motor vehicle shall have annexed thereto a verified statement of the claim as provided for in Civil Procedure Form 9A or Civil Procedure Form 9B printed in the Appendix of Forms. Such verified statement shall be deemed a part of the ...