
    Matthew Hale Smith, plaintiff, vs. William H. Trafton, defendant.
    1. The question whether facts set up in mitigation are or are not such as should be admitted to be given in evidence for that purpose, can only be determined by the presiding judge, upon the trial.
    2. Whether or not the plaintiff is sufficiently apprised by the contents of the answer, of circumstances to be introduced by the defendant in mitigation of damages, depends upon the question whether at the trial if the evidence offered in its support is admitted, he will be taken by surprise, and therefore be unable to proceed with such trial.
    3. The allegation of matter in mitigation of damages, in an answer, is not material; it requires no reply, is not the subject of demurrer, and not being set up as a defense, but as a notice, merely, a motion to make such matter more definite and certain, cannot be entertained.
    (Before Moncrief, J. at special term,
    March 9, 1865.)
   Moncrief, J.

The question whether the facts set up in mitigation are or are not such as should he admitted to he in evidence in mitigation, must he determined by the presiding judge upon the trial.

Whether or not the plaintiff is sufficintly apprised hy the matter set up in the answer (in mitigation of damages) necessarily depends upon the question whether he can affirm at the trial that if the evidence offered in its support is admitted he will be taken hy surprise and will be unable to proceed with the trial of the action.

The allegation of matter in mitigation of damages is not material, (5 Sand/. 54 ;) it requires no reply, and is not the subject of demurrer. (Newman v. Otto, 4 Sandf. 669.) It is not set up as a defense, but as a notice merely. In Maretzek v. Cauldwell, (2 Rob. 715,) Robebtson, Ch. J. held that a motion to make such matter more definite and certain could not be entertained—affirmed on appeal, at general term.

This is decisive of the present application, which must be denied with $10 costs to the defendant.  