
    Aloys Steffen, Resp’t, v. Frank Schaefer and Joseph Gerard, App'lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Slander—Pleading.
    Matters of special defense and in mitigation must be pleaded in order to be admissible in evidence in defense to an action for slander, and when pleaded cannot be stricken out as irrelevant.
    Appeal from order striking out certain defenses set up in the answer as irrelevant.
    
      B. W. Downing, for app’lts; Albrecht J. Lerche, (Augustus N. Welles and Thomas F. Byrne, of counsel), for resp’t.
   Dykman, J.

—This is an appeal from an order striking 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 § 165 of the former Code and § 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 id., 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 damages.

These considerations lead us to the conclusion that the order was erroneous and should he reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

Barnard, P. J., and Pratt, J., concur.  