This is an action for assault and battery. The plaintiff testified as to the assault committed by the defendant, and stated, that, while making the assault, the defendant applied bad language to him. He was then asked to “state the exact language used by Maguire, the defendant, on that occasion.’’ The defendant objected on the ground of irrelevancy, and on the ground that, if the language was slanderous, it would form the subject matter of another distinct *279action, and could not be introduced under the pleadings to aggravate the damages, or for any purpose. The objection was sustained and the testimony excluded. Plaintiff excepted. It does not appear what the language was which plaintiff desired to prove. But the language used at the time of making the assault was a part of the res gestee, and such language is admissible in evidence for the purpose of characterizing the act, as bearing upon the question of malice. While matter not pleaded cannot be shown in evidence for the purpose of serving as a basis for special damages, or establishing an independent cause of action, yet malice, or want of malice, may be shown, when exemplary damages are allowable, for the purpose of aggravating or mitigating general damages, and the language used at the time of the - assault will ordinarily illustrate the motive and condition of mind of the assaulting party, and characterize the act. Greenleaf states the rule thus: “ The manner, motives, place, and circumstances of the assault, however, though tending to increase the damages, need not be specially stated, but may be shown in evidence. Thus, where the battery was committed in the house of the plaintiff, which the defendant rudely entered, knowing that the plaintiff’s daughter in law was there sick and in travail, evidence of this fact was held admissible without a particular averment. Nor are the jury confined to the mere corporal injury which the plaintiff has sustained; but they are at liberty to consider the malice of the defendant, the insulting character of his conduct, the rank in life of the several parties, and all the circumstances of the outrage, and thereupon to award such exemplary damages as the circumstances may in their judgment require.” (2 Greenl. Ev., Sec. 89.) And Saunders says: “ The plaintiff' should prove as many distinct assaults as there are counts, and all the allegations contained therein, by going into the circumstances of his case at length, as to the manner in which the assault and battery was committed, the defendant’s conduct and expressions, the degree of vio*280lence used, and the extent of the injury.” (1 Saund. Pl. and Ev. 152.)
We think the evidence admissible for the purpose indicated, but not as a ground of special damages, or to prove an independent cause of action.
The defendant, as a substantive, affirmative cause of action, set up, by way of a counterclaim, a libel published by the plaintiff concerning the defendant. After the plaintiff rested, the defendant offered to prove the libelous matter set up in the answer as a special defense and as a counterclaim. Plaintiff objected, on the ground that the facts set up constituted no justification, and were not admissible as matter in mitigation of damages, and on the further ground that the matter did not constitute a counterclaim within the meaning of the provisions of the Practice Act, which the defendant was authorized to set up, or prove, in this action. The Court sustained the objection as to the first two grounds, and excluded the evidence for the purpose of justification, or mitigation, of damages. But the Court was of opinion that the objection on the last ground should have been taken by demurrer, and as the plaintiff had .not demurred the objection was waived. The testimony was therefore admitted to establish the counterclaim, and plaintiff excepted to the ruling admitting the testimony. In this respect, also, we think the Court erred. The defendant was authorized by section forty-six to set up “a counterclaim constituting a defense.” Section forty-seven defines the term “ counterclaim ” in the following language: “ The counterclaim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant between whom a several judgment might be had in the action, and arising out of one of the following causes of action : First—A cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff’s claim or defendant’s defense, or connected with the subject of the action. Second—In an action arising upon contract. Any other cause of action arising also upon *281contract and existing at the commencement of the action.” The matter set up is clearly not a counterclaim, within the meaning of this provision. (Pattison v. Richards, 22 Barb. 143; Murden v. Priment, 1 Hilton, 76; Barhyte v. Hughes, 33 Barb. 320; Schnaderbeck v. Worth, 8 Abb. 38.) We do not think the objection waived by failure to demur. The ground of demurrer is not a misjoinder of defenses; but it is, that the matter is not recognized by the law as a defense to the action. The party may have an independent cause of action, but it has no relation to the pending action. As it is not recognized by the law as a defense,.we see no good reason why the objection may not be taken at any time. The cases' already cited are authority on this, point also. The question did not arise in either of them on demurrer. In Pattison v. Richards the testimony had all been taken, and the Judge charged the jury that the matter set up in the answer, and proved, was not a counterclaim within the meaning of the code, and constituted no defense to the action. This ruling was sustained on appeal. The Court said “if the defendant has a remedy against the plaintiff upon the matter set up, he must seek it in a separate suit.” (22 Barb. 146.) So in Barhyte v. Hughes, 33 Barb. 321, the action was assault and battery, and an assault by plaintiff was set up as a counterclaim. There was no replication to the new matter, and at the close of the testimony the Court charged the jury that the assault set up in the answer could not be set up, in any view, as a defense or counterclaim; that defendant must bring his cross action; and this ruling was sustained on appeal. In Schnaderbeck v. Worth, 8 Abb. 38, the question arose, as in this case, on objection to the testimony offered by the defendant. In Murden v. Priment it does not appear in what precise form the question was raised.
While the objection might have been taken by demurrer, we think it was not waived by failure to demur.
It is, however, insisted by respondent’s counsel that matters set up in the answer, if improperly admitted as evidence *282in support of the counterclaim, were still admissible to show the exciting cause of the assault in mitigation of damages, and, on this ground, there could be no injury. But, if it be conceded that the evidence was admissible.in mitigation of damages, it was ruled out for that purpose on objection of respondent, and admitted only in support of the counterclaim, as a substantive cause of action in favor of defendant, and the jury could only have considered it in that aspect.
The consequences may have been very different to the plaintiff. The terms, “ aggravation,” and “ mitigation of damages,” relate to the question of exemplary or punitive damages.
Damages, in an independent cause of action in favor of defendant against a plaintiff, are an entirely different matter, and the one is in no respect the equivalent of the other, either in law or as matter of fact, and the error committed cannot be compensated in the mode proposed by respondent.
The propriety of the ruling in excluding the evidence for the purpose of mitigating the damages is not before us on this appeal.
Judgment and order denying new trial reversed and new trial granted.