RAPALLO, J.

The exceptions upon which a new trial is asked in this action, relate wholly to rulings of the Court in admitting and excluding testimony.

The alleged slanderous words are proved by one Lydia Smith, to have been spoken by the defendant Martha to the witness in a conversation which took place between them in March, 1874, and which the witness testified was the first occasion on which the plaintiff was the subject of conversation between her and Martha. That conversation was fully detailed on the trial, and no part of it was excluded. The defendant Martha was examined as a witness on her own behalf, and denied the speaking of the words. She was examined as to the conversation at which they were alleged to have been spoken, and on cross-examination was also examined as to various subsequent conversations with Lydia Smith, and was then asked the following question: "At any of these interviews, did Mrs. Smith ever bring any reports to you about what people had said about Eliza being in the store with Mr. Hill alone?" An objection by the plaintiff to this question was sustained.

This ruling was, we think, correct, for several reasons. First, because it was mere hearsay, which could only be available to the defendant, if at all, in mitigation of damages as showing provocation, and that the defendant was merely repeating a slander she had heard. But if it could be available for this purpose, it could only be so by showing that these reports were brought to the defendant before she uttered the words charged in the complaint. If afterwards, the evidence was clearly inadmissible. The question related in part, if not wholly, to interviews occurring after the slander, and for that reason was improper. To render it proper for any purpose, it should have been confined to a period preceding the slander. Secondly, we apprehend that in actions of this description, circumstances in mitigation must be set up in the answer, in order to be admissible in evidence. (Code, § 165; Spooner v. Keeler, 51 N Y, 527; Bush v. Prosser, 11 N.Y., 347; Bisbey v. Shaw, 12 N.Y., 67; Wachter v. Quenzer, 29 N.Y. 547.) And although the answer in this case does set out mitigating circumstances, the one sought to be proved is not among them. It is claimed by the appellant that the evidence was proper, for the purpose of contradicting and impeaching Mrs. Smith. But it does not appear to have been offered for that purpose, nor had the necessary foundation been laid for its admission.

The next exceptions relied upon are to excluding a question to the witness Byron Sunderlin: "State whether you saw Mrs. Willover in the store with Mr. Hill after that time," and to rejecting the offer made in connection with that question to prove by the witness that, after plaintiff left the employ of the defendants, and after she was aware that these reports were in circulation, she was seen in the store at ten o'clock at night, alone with Mr. Hill, having private conversation with him; and to prove, further, that prior to that time, and prior to the time of the alleged uttering of the slander, these reports were in circulation in the village.

There was no offer to prove that the fact of this meeting at the store at night had been communicated to Mrs. Hill before she uttered the alleged slander. On the contrary, the offer was only to show that reports unfavorable to the plaintiff were in circulation in the village before the alleged meeting took place. The evidence offered, therefore, could have no effect in mitigation of damages. If it tended to prove anything material, it was a justification, and none was pleaded. The evidence was subject to the further objection that no such circumstance as that attempted to be proved was pleaded, either in justification or mitigation.

The other exceptions are clearly untenable, and were not relied upon on the argument. We find no error for which the judgment should be reversed.

The judgment should be affirmed.

All concur, except CHURCH, Ch. J., and ALLEN, J., absent.

Judgment affirmed.