This is an action for slander, charging the defendant with having uttered words imputing want of chastity to the plaintiff, who, in the complaint, is alleged to be an “ unmarried female,” and who, by answer of the defendant, is assumed to be an “ unmarried female,” and also accusing her of larceny.
There was a conflict in the evidence as to the alleged utterances by the defendant. As a witness lie made several denials of statements made by the witnesses for the plaintiff.
Several rulings were made during the progress of the trial, some of which are complained of by the defendant, to which no exceptions were taken.
The following question was propounded to the witness Clara M.' Copeland ; “ Q. I will ask you what her reputation was, from the speech of people, in regard to morality and chastity, good or bad ? ”
This question was objected to as immaterial and incompetent and was overruled and an exception was taken.
When Dr. Butherford was on the stand a similar question was propounded to him, and he was allowed to answer: “I am acquainted with her general reputation; know people she is acquainted with and her general moral character. Her reputation for chastity ■ arid propriety of conduct has been good.” There was no objection taken to this evidence. Probably it was received without objection after the preceding question had been passed upon by the court.
In Pratt v. Andrews (4 N. Y. 493) it was held : “ A party to a civil suit can only give evidence of the good character of himself, his wife, servant or witness, in answer to impeaching evidence on the other side. Held, in an action for erim con., that the plaintiff could not give evidence of the good character of the wife previous to the adultery, there being no evidence on the other side impeaching her previous general character, or her conduct with any *403other person than the defendant himself. When in such an action the wife’s character for chastity has been attacked, either by the testimony of witnesses on the part of the defendant or by the course of cross-examining the plaintiff’s witnesses, evidence in support of her character will be received. But guere, whether such evidence is admissible where the character of the wife has been assailed, not generally, but only by proof of particular acts of misconduct.”
In the course of the opinion in that case Bronson, Ch. J., said : “ Evidence of general character is not so freely admitted now as it was formerly. A party to a civil suit was at one time, or rather on one occasion, allowed to- give evidence of his good character in answer to circumstantial evidence on the other side imputing to him a gross fraud. (Ruan v. Perry, 3 Caines, 120.) But that case was long since overruled. (Gough v. St. John, 16 Wend. 646.) And this court has recently held in Houghtaling v. Kilderhouse (1 Comst. 530 ; S. C., 2 Barb. 149) that in actions of slander for charging the plaintiff with killing the defendant’s horses by poison, the plaintiff cannot give evidence of his good character in answer to evidence on the other side tending to show him guilty of the crime imputed to him. In point of principle that case goes the whole length of deciding the one under consideration, for here the defendant gave no evidence touching the character of the wife, anterior to the misconduct in question.”
In People v. Gay (7 N. Y. 378) it was held, viz.: “A party is not permitted to give evidence of the good character of his witness unless evidence has been given on the other side either upon direct or cross-examination tending to impeach his general character.”
In Schaeffer v. Oppenheimer (9 N. Y. St. Repr. 688) it was held : iC In an action to recover damages for an alleged indecent assault by defendant upon plaintiff, whereby she became pregnant and gave birth to a child, evidence of the good reputation of the plaintiff is not admissible, where her character has not been assailed generally, but only by proof of particular acts of misconduct.”
In Young v. Johnson (123 N. Y. 234) which was an- action brought by the plaintiff against the defendant for having defiled her, and with force and arms assaulted her, the court says -at page 234, viz.: “ After the defendant had given his proof and rested, the plaintiff called witnesses and offered to prove by *404them that she was a person of good moral character in. the community 'where she lived according to the speech of people. This evidence was offered, as stated by plaintiff’s counsel, for the purpose of corroborating the main facts in the cáse and rebutting the presumption which the specific acts shown might have raised against her, and as bearing upon her character for truth and veracity. The defendant's eounsel stated that he made no claim that the plaintiff's character was not good,, according to common report, and he-objected to the proof as incompetent.- The court sustained the objection, upon the ground that, if it was competent at all, it was-part of the plaintiff’s affirmative case, and to this ruling the plaintiff excepted. As the defendant had not attacked the general reputation of the plaintiff for truth and. veracity, and ás he expressly disclaimed any purpose to do so, evidence bearing upon the plaintiff’s character for truth to corroborate her as a witness was not admissible. (People v. Halse, 3 Hill, 309; Pratt v. Andrews, 4 N. Y. 493; People v. Gay, 7 id. 378.) If the testimony was admissible as. bearing upon the general issues in. the case, it could have been given before the plaintiff rested, and it was not error for the ■ court to exclude it when offered. This ruling was an exercise of discretion on the part of the trial court that is not subject to-review.”
In. Stafford v. The Morning Journal Association (60 N. Y. St, Repr. 309; S. C., 142 N. Y. 598), in an action brought for libel, the • court, at page 310, observed: “ The general rule as to the impropriety of permitting a party to give evidence of his good reputation, in actions for the recovery of damages for libel or slander, has-reference to cases where reputation is not a material issue, or where-it has not been attacked. The reason for it is in the absence of any usefulness in proving that which the law already assumes, and because the character of the complaint does not form the basis for the recovery of general damages. But this case differs from those-relied upon by the appellant in certain aspects. In the first place, the plaintiff’s allegation was put in issue by the answer. It is true-that it was unnecessary for the plaintiff to allege as she did with respect to her reputation; but having done so, the defendant, in choosing to make an issue upon the answer, opened the door for the offer óf evidence. In the next place, when the question of materiality *405was raised, it was then open to defendant to disclaim any purpose of questioning the plaintiff’s reputation. . But it did- not do so. The objection that ‘it was not one of the issues under the pleadings,’ of course, was not true; while, if the proof was immaterial, then no harm can be said to result from giving it and in establishing that winch the law presumed. The very effect before the jury of failing to disclaim any purpose of questioning the plaintiff’s character, when the question was raised upon, the issue, and when endeavoring to prevent any proof as to what it was, must have been bad and, as I think, warranted the trial judge, under the circumstances, in permitting evidence to be given. I do not think the plaintiff was absolutely bound, in the face of an issue tendered by the defendant as to her reputation for chastity and virtue, to sit quiet and to rest upon the legal presumption. The evidence bore upon an issue in the case which the defendant could have avoided, and the plaintiff, in anticipating any possible attack and in insisting upon the admission of the evidence in question in the absence of any disclaimer on the part of the defendant, should not be made to suffer from the ruling in question. She very properly offered it as á part of her case (Young v. Johnson, 123 N. Y. 226; 33 [N. Y.] St. Repr. 486), and the trial judge committed no error in permitting proof of what the law assumed.”
And the opinion further continues, after referring to Young v. Johnson (123 N. Y. 226), and says of that case that “ the exclusion of the evidence was upheld here upon the ground that the plaintiff’s reputation had hot been attacked and that the defendant had expressly disclaimed' any such purpose. -In that case it was significantly remarked that if the testimony was admissible, as bearing upon the general issues in the case, it could have been given before plaintiff rested her case.”
In that case the complaint alleged that the plaintiff was of “ good character and repute and enjoyed the respect of her friends and acquaintances and of the community.”
The answer stated that, the defendant had “no knowledge or information sufficient to form a belief as to the allegations contained in that paragraph of the complaint.”
The case further states: “ At the commencement of her case the plaintiff called witnesses to prove her allegations and the defendant *406objected upon the grounds of immateriality and of incompetency, and, also, ‘ that it is not one of-the issues under the pleadings.’ ”
The judge further observes : “ The general rule as to the impropriety of permitting a party to give evidence of his good reputation in actions for the recovery of damages for libel, or slander has reference to cases where reputation is not a material issue, or where it has not- been attacked. The reason for it is in the absence of any usefulness in proving that "which the law already assumes, and because the character of the complaint does not form the basis for the recovery of general damages.”
If we turn to the complaint in the case in hand we find the following allegation: “ Plaintiff further alleges that she has always been of chaste character and good repute, enjoying the respect and esteem of her acquaintances and of all persons with whom she has been .associated in personal or business relations.”
The answer, after admitting that the defendant resides in Rochester and is engaged in the business of manufacturing infants’ shoes, proceeds, .viz.: “ This defendant further answering said complaint, denies each and every -allegation thereof, except as hereinafter qualified or explained.” '
It then proceeds to allege “ that he had heard and been informed that the plaintiff as an unmarried female was with child, and carried a child in her belly, and that such reports wrere commonly reported in the neighborhood in which she resided at the time, and that whatever he has said of or concerning the plaintiff was stated in confidence to persons inquiring of and concerning her,” etc.
We, therefore, find in the complaint an averment of her good character and a denial thereof in the answer, apparently bringing the ease within the doctrine laid down in Stafford v. The Morning Journal Association (supra). It is to be observed that when the evidence was offered at folio 202,. to be given by the witness Copeland, there was no disclaimer by the defendant of an intention to attack the character of the plaintiff for chastity or for veracity. It seems, therefore, that the exception, found at folio 203, does not present error.
The witness Rutherford was permitted to give similar evidence, without any objection op the part of the defendant. The witness stated: “ Her reputation for chastity and propriety of conduct has been good.”
*407• I am inclined to think that the exceptions alluded to do not present prejudicial error requiring us to interfere with the verdict.
Upon the ground that the damages are excessive a new trial should be ordered.'
Green, J., concurred.