■collected ninety dollars from one Henry Smith, and from one Feely ninety •dollars more, and that he had not rendered a statement of his accounts when these defendants complained as aforesaid, and great talk and scandal was ■caused thereby in said church, so much so that defendants and their co-trustees made that one of the causes of complaint to said bishop as aforesaid; and because of said scandalous conduct of said pastor these defendants left said ■church, and defendant Schaefer went to the Catholic Church at Jamaica, several miles away, and has ever since attended said Jamaica church. (11) Defendants further say that it is a fact, and they will prove upon the trial of this action in mitigation of any damages to be obtained therein, that the conduct of said plaintiff with said Eosa Bauas was of a scandalous character, and contrary to what should be the modest conduct expected from a pastor •of the said Catholic Church. That said plaintiff did insist and said repeatedly that he had a right to marry, which, defendants aver, was in violation of the rules of said Catholic Church; and said plaintiff uttered various other scandalous things, whereby he brought great scandal and reproach on said Catholic Church at Woodhaven. Wherefore the defendants demand that said ■complaint be dismissed, with costs of this action.”
Code Civil Proc. H. Y. § 536, provides as follows: “In an action tore-cover damages for the breach of a promise to marry, or for a personal injury, •or an injury to property, the defendant may prove, at the trial, facts, not amounting to a total defense, tending to mitigate or otherwise reduce plaintiff’s damages, if they are set forth in the answer, either with or without one •or more defenses to the entire cause of action. A defendant, in default for want of an answer, may, upon a reference or inquiry to ascertain the amount ■of the plaintiff’s damages, prove facts of that description.” From an order •striking out from the answer said paragraphs 9, 10, and 11 defendants appeal.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.B. W. Downing, for appellants. Albrecht J. Learche, (Augustus N. Welles and Thomas F. Byrne, of counsel,) for respondent.
This is an appeal from an order out the ninth, tenth, and eleventh defenses set up in the answer of the defendant in this •action. The action is for slander, and the ninth clause of the answer set up facts upon which the defendants intend to claim that the words spoken were privileged, while the tenth and eleventh clauses in the answer set up certain facts which the defendants desire to prove in mitigation of damages. The matters set up in these three clauses of the answer were all special defenses, •and it was necessary to set them up by way of answer to secure their reception in evidence on the trial. In fact, in this class of actions, all circumstances in mitigation, and all matters of special defense, must be set up in the ••answer in order to be admissible in evidence. Willover v. Hill, 72 N. Y. 36 . Under section 165 of the former Code and section 536 of the present Code the ■defendant may prove at the trial facts not amounting to a total defense, tending to mitigate or reduce the plaintiff’s damages, provided they are set .forth in the answer; but only such as are pleaded can be proved. Ball v. Evening Post, 38 Hun, 16 ; Blanchard v. Tulip, 32 Hun, 638 . Under the prevalent rule of pleadings in actions of libel and slander it was essential to •set up the facts contained in .the ninth, tenth, and eleventh clauses of the -answer in order to enable the defendants to prove them on the trial, and if they are stricken out they can introduce no evidence in mitigation of dam•ages. These considerations lead us to the conclusion .that the order was ■erroneous, and should be reversed, with $10 costs and disbursements, and ■the motion should be denied, with $10 costs. All concur.