By the court, Joseph F. Daly,
J.—This action is in the nature of trespass, and was brought to recover damages for the taking of the stock of goods in plaintiff’s store by the sheriff under attachments issued out of the marine court in actions commenced by the defendants. Such attachments .having been subsequently vacated as irregular. The jury found for the plaintiff in the sum of $66.30, the value of the goods taken and interest. .Among other questions presented upon this appeal is the following :
On the trial the defendants offered to prove: “ that on the day those attachments were discharged three other attachments were taken out in this court, that two motions had been made to discharge those attachments, and both those motions had been denied, and the property in question had been held ever since under these attachments, and that this proof was not offered as an excuse for the trespass, but it goes to the question of damage.”
. To this an objection was interposed by plaintiff, and the court sustained the objection. The defendants excepted.
The ground upon which the proof was rejected is not. ■stated in the case, but is now claimed to be that it was not set up in the answer, and that it could not be received in mitigation of damages unless specialy pleaded. The defend[406] ants answer was a general denial. Had it been pleaded it Qould have been shown upon trial.
Property taken out of the possession of the trespasser, after the trespass, by virtue of valid legal process against the plaintiff, which has gone to his use, and the fact and amounts-for which the process issued, may be shown in mitigation or reduction of the damage (Hanmer agt. Wilsey, 17 Wend., 91; Otis agt. Jones, 21 Wend., 394; Higgins agt. Whitney, 24 Wend., 379; Sherry agt. Schuyler, 2 Hill, 204; Squire agt. Hollenbeck, 9 Pick., 551; Kaley agt. Shed, 10 Met., 317).
The above cases confine the defendants to proof that the-subsequently valid process was issued not at his own suit but in fav.or of strangers to the action pending.
In some other states the courts have held that the defend-, ant may show in mitigation, the fact wherever the goods have been applied in satisfaction of process against the owner (Irish agt. Cloyes, S Verm., 30, 33; Farrar agt. Barton, 5 Mass., 395; Prescott agt. Wright, 6 Mass., 20; Pierce agt. Benjamin, 16 Pick., 356; Daggett agt. Adams, 1 Green, 198; Board agt. Head, 3 Dana, 489-94; Stewart agt. Martin, 16 Verm., 397), but the contrary has been held -in this state; (Lyons agt. Yates, 52 Barb., 237; Peak agt. Lemon, 1 Lans., 295).
' The question remains, whether under the Code matters ia mitigation of damage in trespass can be pleaded, and if not pleaded ean be -admitted in evidence.
- The return before or"after suit brought, of the property to the- plaintiff by the trespasser, was held to be no defense to the action, and it was held before the Code not to be plead-able (Vosburgh agt. Welch, 11 Johns., 177; Hanmer agt. Wilsey, 17 Wend., 94).
■ And the rule at common law is, that matters in mitigation of damages which cannot be specially pleaded, may be given in evidence under the general issue (Chitty on Pl. 14 Am. ed., vol. 1 p. 506). •
[407] Matters in discharge or confession and avoidance of the action must be specially pleaded such as accord and satisfac tion, arbitrament, release, former recovery, or tender of amends (Chitty on Pl., id.), but the proof offered by the defendants on the trial is of no such character.
It has been held in some cases that the rule under the Code is the same as formerly, and that matters in mitigation which do not constitute a defense cannoc be pleaded, and may be given in evidence (Kncedler agt. Steinbergh, 10 How., 73; Foland agt. Johnson, 16 Abb., 239, and cases cited). And proof of the return of property by the trespasser or of its. application to the satisfaction of valid process subsequently issued, has always been treated as matter in mitigation of damages and not of defense (Edmonson agt. Nuttall, 17 C. B. Reports, N. S., 290).
The case of McKyring agt. Bull, (16 N. Y., 308,) to which reference was made on the trial holds that in actions of assumpsit part payments cannot be given in evidence, unless pleaded even if offered in mitigation of damages.
In Quinn agt. Loyd, (41 N. Y., 352,) the court holds that in actions for a balance due for work where there is no averment, as to the time the work was commenced or finished, or the terms of compensation fixed, proof of payments on account may be given in evidence without being pleaded, although payments whether as a defense or in mitigation of damages must be pleaded.”
But these cases deal exclusively with the question of partial payments in actions on contract and they declare a long settled rule under the Code, viz., that defense of payment cannot be given in evidence under the general denial, except in the particular case discused in Quinn agt. Lloyd.
In Bush agt. Prosser, (11 N. Y., 347,) which was an action of slander it was held, that the answer setting up matters in mitigation of damages, might stand without an answer, setting up justification ; this was the first recognition of the right to plead under the Code matters in mitigation of dam[408] ■ages as a partial defense under sections 149 and 150 of the Code, although at common law such matters could not be pleaded, and are not pleaded in England at this time (Linford agt. Lake, 3 Hurtst & Norm., 276.)
The court in Bush agt. Prosser, (supra,) per Allen, J., conclude, that facts constituting a partial defence and tending to mitigate the damages, may and should be pleaded. In Foland agt. Johnson, (16 Abb., 239,) which was an action of assault and battery, where matter going merely to mitigate the damages was set up in the answer, the court held under the authority of the cases in the court of appeals above cited, that such matter may be pleaded as a partial defense.
, The matter in mitigation there set up was not in the nature ot satisfaction, but concerned only the social condition and habits, &c., of the person claiming damages for injury by the assault and imprisonment complained of.
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By the court, Joseph F. Daly,
J.—This action is in the nature of trespass, and was brought to recover damages for the taking of the stock of goods in plaintiff’s store by the sheriff under attachments issued out of the marine court in actions commenced by the defendants. Such attachments .having been subsequently vacated as irregular. The jury found for the plaintiff in the sum of $66.30, the value of the goods taken and interest. .Among other questions presented upon this appeal is the following :
On the trial the defendants offered to prove: “ that on the day those attachments were discharged three other attachments were taken out in this court, that two motions had been made to discharge those attachments, and both those motions had been denied, and the property in question had been held ever since under these attachments, and that this proof was not offered as an excuse for the trespass, but it goes to the question of damage.”
. To this an objection was interposed by plaintiff, and the court sustained the objection. The defendants excepted.
The ground upon which the proof was rejected is not. ■stated in the case, but is now claimed to be that it was not set up in the answer, and that it could not be received in mitigation of damages unless specialy pleaded. The defend[406] ants answer was a general denial. Had it been pleaded it Qould have been shown upon trial.
Property taken out of the possession of the trespasser, after the trespass, by virtue of valid legal process against the plaintiff, which has gone to his use, and the fact and amounts-for which the process issued, may be shown in mitigation or reduction of the damage (Hanmer agt. Wilsey, 17 Wend., 91; Otis agt. Jones, 21 Wend., 394; Higgins agt. Whitney, 24 Wend., 379; Sherry agt. Schuyler, 2 Hill, 204; Squire agt. Hollenbeck, 9 Pick., 551; Kaley agt. Shed, 10 Met., 317).
The above cases confine the defendants to proof that the-subsequently valid process was issued not at his own suit but in fav.or of strangers to the action pending.
In some other states the courts have held that the defend-, ant may show in mitigation, the fact wherever the goods have been applied in satisfaction of process against the owner (Irish agt. Cloyes, S Verm., 30, 33; Farrar agt. Barton, 5 Mass., 395; Prescott agt. Wright, 6 Mass., 20; Pierce agt. Benjamin, 16 Pick., 356; Daggett agt. Adams, 1 Green, 198; Board agt. Head, 3 Dana, 489-94; Stewart agt. Martin, 16 Verm., 397), but the contrary has been held -in this state; (Lyons agt. Yates, 52 Barb., 237; Peak agt. Lemon, 1 Lans., 295).
' The question remains, whether under the Code matters ia mitigation of damage in trespass can be pleaded, and if not pleaded ean be -admitted in evidence.
- The return before or"after suit brought, of the property to the- plaintiff by the trespasser, was held to be no defense to the action, and it was held before the Code not to be plead-able (Vosburgh agt. Welch, 11 Johns., 177; Hanmer agt. Wilsey, 17 Wend., 94).
■ And the rule at common law is, that matters in mitigation of damages which cannot be specially pleaded, may be given in evidence under the general issue (Chitty on Pl. 14 Am. ed., vol. 1 p. 506). •
[407] Matters in discharge or confession and avoidance of the action must be specially pleaded such as accord and satisfac tion, arbitrament, release, former recovery, or tender of amends (Chitty on Pl., id.), but the proof offered by the defendants on the trial is of no such character.
It has been held in some cases that the rule under the Code is the same as formerly, and that matters in mitigation which do not constitute a defense cannoc be pleaded, and may be given in evidence (Kncedler agt. Steinbergh, 10 How., 73; Foland agt. Johnson, 16 Abb., 239, and cases cited). And proof of the return of property by the trespasser or of its. application to the satisfaction of valid process subsequently issued, has always been treated as matter in mitigation of damages and not of defense (Edmonson agt. Nuttall, 17 C. B. Reports, N. S., 290).
The case of McKyring agt. Bull, (16 N. Y., 308,) to which reference was made on the trial holds that in actions of assumpsit part payments cannot be given in evidence, unless pleaded even if offered in mitigation of damages.
In Quinn agt. Loyd, (41 N. Y., 352,) the court holds that in actions for a balance due for work where there is no averment, as to the time the work was commenced or finished, or the terms of compensation fixed, proof of payments on account may be given in evidence without being pleaded, although payments whether as a defense or in mitigation of damages must be pleaded.”
But these cases deal exclusively with the question of partial payments in actions on contract and they declare a long settled rule under the Code, viz., that defense of payment cannot be given in evidence under the general denial, except in the particular case discused in Quinn agt. Lloyd.
In Bush agt. Prosser, (11 N. Y., 347,) which was an action of slander it was held, that the answer setting up matters in mitigation of damages, might stand without an answer, setting up justification ; this was the first recognition of the right to plead under the Code matters in mitigation of dam[408] ■ages as a partial defense under sections 149 and 150 of the Code, although at common law such matters could not be pleaded, and are not pleaded in England at this time (Linford agt. Lake, 3 Hurtst & Norm., 276.)
The court in Bush agt. Prosser, (supra,) per Allen, J., conclude, that facts constituting a partial defence and tending to mitigate the damages, may and should be pleaded. In Foland agt. Johnson, (16 Abb., 239,) which was an action of assault and battery, where matter going merely to mitigate the damages was set up in the answer, the court held under the authority of the cases in the court of appeals above cited, that such matter may be pleaded as a partial defense.
, The matter in mitigation there set up was not in the nature ot satisfaction, but concerned only the social condition and habits, &c., of the person claiming damages for injury by the assault and imprisonment complained of.
This alteration of the rule of pleading before the Code, is one productive of good results in cases where the matter relied upon in mitigation of damages, is really a partial satisfaction of the claim as in the present case, and of which the plaintiff should have notice before the trial. The fact offered to be shown by the defendant, viz., that the property was seized, and held by subsequent valid attachments against the plaintiff is no+ one which the plaintiff can certainly be presumed to be aware of, and be prepared to meet on the trial without notice that it is to be proved ; it does not resemble those matters usually urged in mitigation which refer to the condition, conduct or proceedings óf the parties, at or before the time of the act for which the action is brought, and which, form a part of the motives, &c., inciting to the offense or circumstances immediately attending it. - I am inclined to follow the views of the supreme court at general term in the third district 1862, Foland agt. Johnson, (supra,) and hold the provisions of the Code, sections 149 and 150, requiring partial defenses to be pleaded, applicable to matters [409] in mitigation of damages, so far at least as those matters occur after the act complained of as the cause of action, and out of the presence of the plaintiff.
• The judge, at special term, on the trial, therefore, properly excluded the evidence offered at folio 199 of the case— the defense not having been set up in the answer. This question has been examined in view of the fact, that a new trial will have to be granted for the reason stated in the opinion of Judge Robinson, and the defendants in order to avail themselves of any defense in mitigation of damages of the character offered by them and here discussed, must obtain leave to amend and plead it specially.
Robinson, J.
But while entertaining the opinion that there was no error of law in the rulings or decisions of the judge upon any matters excepted to, yet there do appear such errors in the course of the trial which so manifestly tended to the prejudice of the defendants as require that a new trial should be granted.
Ftrst. The plaintifis’ witnesses without the production of any inventory or statement of the goods taken, or any either general or particular description of their quantity, quality, kind or character, or of the separate value of the numerous articles taken, from which any summary or aggregate value might be calculated or computed, were allowed to testify that the stock was worth between $10,000 and $12,000, and so far as appears upon this mere guess or conjecture a recovery has been had of $6,630, while the estimate of defendants experts, founded on an examination accompanied with an inventory, do not exceed $2,500. The opinion of experts is only admissible or of any weight when the facts or particulars upon which it is predicated have been so distinctly proven that any other expert who heard, testified to, or to whom they were communicated, would be in like manner enabled to make estimate or give an opinion. The general statement by a witness of his opinion or conclusion, without [410] the facts and particulars upon which it is founded appear to be within his knowledge, and the process by which his conclusion is arrived at, is improper testimony to be admitted on a trial (Terpenning agt. Corn Ex. Ins. Co., 43 N. Y., 279), and amounts at most to mere conjecture, and such to a very great extent must have been the character of the testimony introduced by the plaintiffs, and ought not to have prevailed against the more reliable evidence introduced by the defendants.
Second. The learned judge misdirected the jury in charging them that if one of several trespassers paid the judgment against him “ he is entitled to contribution from the others, that as between him and them they must each bear their proportional parts.” As between several wrong doers no such contribution can be enforced (Peck agt. Ellis, 2 Johns., ch. 131; Miller agt. Fenton, 11 Paige, 18; Anderson agt. Murray, 33 Barb., 354; 1 Hillys on Tort, 185, note a). There is an exception to the general rule where one person commits the trespass for the benefit of another, where he has acted innocently and without intent to break the law: in such case he may have recourse for the damages he sustains,, but no such feature was presented in this case. '
Third., He also erred in charging the jury that the party aggrieved was entitled to interest on the value of the property, by way of additional damages. In actions ex delicto it is in the discretion of the jury to . allow interest or not, and it is error to charge them that the plaintiff is entitled to interest as a matter of right (Sedg. on Dam., 386, 5 ed., 441; Black agt. Camden & A. B. & T. Co., 45 Barb., 43; Walrath agt. Redfield, 18 N. Y., 462).
For these reasons the judgment should be reversed and a new trial ordered, with costs to abide the event.