Barnes v. Willet
12 Abb. Pr. 448
N.Y. Sup. Ct.
1861
Check Treatment
By the Court.*—Ingraham, J.

—It is not necessary to decide here whether proof as to the insolvency of the debtor can be given in evidence in mitigation of damages. That question must be decided on the trial when the evidence is offered.

*451It is set up in the answer in mitigation of damages. It is clearly no bar to the action, and should not have been pleaded as such. As matter of mitigation, it is improperly in the answer, and shows no defence. As a matter of pleading, it was erroneously set up in the answer.

Order appealed from affirmed, with costs.

Present, Clerke, P. J., Ingraham and Leonard, JJ.