MacCromac v. Tobey — 109 A.D. 581

Majority

p. 581

Paul MacCormac, Respondent, v. Arthur G. Tobey, Appellant.

First Department,

December, 1905.

Headnote

Place of trial — action, for libel tried in county where published.

hen the complaint in an action for libel makes no allegation that there was any publication thereof outside of the county where the newspaper was printed and circulated, the action should be tried in that county.

Appeal by the defendant, Arthur G. Tobey, from an order of ntered in the office of the clerk of the county of Hew York on the

p. 582

SOth day of October, 1905, denying the defendant’s motion to change the place of trial of the action from the county of New York to the county of Dutchess.

W. E. Hoysradt, for the appellant.

B. L. Kraus, for the respondent.

This action was brought against the defendant as owner and publisher of a newspaper called the Sunday Courier, published in Poughkeepsie, Dutchess county, N. Y., to recover damages for a libel. The complaint alleges that the newspaper was published in Poughkeepsie and that the said paper is of general circulation in that city and the vicinity. There is no allegation that there was a publication of the libel outside of the county of Dutchess.

W e held in Rogers v. Butler ( 11 App. Div. 613 ) and in Woolworth v. Kloclñ (92 id. 142) that an action for libel should be tried, in the county in which the newspaper is published and circulated. Whatever damages the plaintiff sustained in consequence of such publication arose from the publication in the county in which ‘the newspaper was circulated. There is no justification alleged, and the only questions to be determined are whether or. not the article published is a libel and, if it is, the amount of the plaintiff’s damage. The question as to whether the article published is .a libel is a question .of law, and the plaintiff’s damage, if any, can be more conveniently ascertained in Dutchess county, where the paper is circulated. •

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.

O’Brien, P. concurred. J, McLaughlin, Lahghlin and Houghton, JJ.,

Order reversed, with ten dollars costs and disbursements, and motion granted.