¶1The 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.
¶2Whether 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.
¶3*710The 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.
¶4This is decisive of the present application, which must be denied with $10 costs to the defendant.