
    MARY BLANCHARD, Respondent, v. LEWIS TULIP, Appellant.
    
      Evidence — action for slander — facts tending to mitigate the damages cannot be proved unless they are pleaded.
    
    Appeal from a judgment in favor of tho plaintiff, entered on the report.of a referee.
    The action was brought to recover damages for a slander uttered by the defendant, charging the plaintiff, a married woman, with unchastity. The answer contained a denial and an allegation of the truth of the charge.
    On this appeal the defendant alleges as error that upon the trial he ashed a witness: “ Do jmu know the general reputation of the plaintiff as to chastity in the community previous to 1882 ?” that being the time of' the alleged slander. This was excluded, among other reasons, because no mitigation was pleaded in the answer, and also as immaterial.
    The court at General Term said : “ The defendant cites, to show that this was error, the case of Wandett v. Hdwards (32 Suj). Ct. N. Y. [25 Hun], 498). But the evidence there offered was not evidence of general bad reputation, nor was the action for slander. It was held that in an action by a father for seduction of his daughter, proof that she had been previously seduced might be given without setting up the fact in the answer.
    “ In the present case the evidence, if material, would be material only as it tended partly to excuse the defendant for uttering the slander, and thus to mitigate the damages which might otherwise have been given to punish him for his false statement. Therefore the fact's should have been pleaded.” ( Willover v. Hill, 72 N. Y., 36 ; Code, § 536.)
    Judgment should be affirmed, with costs.
    
      J. B. Hiley, for the appellant.
    
      Beckwith, Barnard <& Wheeler, for the respondent.
   Opinion

Per Curiam.

Present — Learned, P. J., BoardMAn and Bocees, JJ.

Judgment affirmed, with costs.  