p. 1111(Supreme Court, Appellate Division, First Department.Headnote
1. Change of Venue—Action fob Libel.The only question oí fact in an action for libel being that of damages, it not being alleged that the libel was published in the county where the action was brought, and all the witnesses except plaintiff being residents of the county in which the paper containing the libel was published, change of venue should be granted to such county.
Appeal from Special Term, New York County.
Action by Frank W. Woolworth against Jay E. Klock. From an order denying a motion to change the place of trial from the city and county of New York to Ulster county, defendant appeals. Reversed.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGPILIN, JJ.A. T. Clearwater, for appellant.
Joseph B. Handy, for respondent.
This action is brought to recover damages for the publication of a libel in defendant’s newspaper, published at Kingston, in the county of Ulster. The publication of the libel is admitted, and the answer in all essential respects is a plea in mitigation of damages, and such is the question which will be litigated upon the trial. The action is transitory in its nature, and there is no averment in the complaint that the libel was published in the city and county of New York. Whatever damages the plaintiff has sustained from this publication would seem to be limited to such as he has sustained in the locality in which the paper was published and circulated; and the witnesses upon
p. 1112such subject, save the plaintiff, are shown to reside there. ' Within the ruling of this court in Rogers v. Butler, 71 App. Div. 613 , 75 N. Y. Supp. 536 , the proper place for the trial of the action would seem to be the county of Ulster.
The order should therefore be reversed, with $10 costs and disbursements, and the motion granted.