MacCormac v. Tobey — 96 N.Y.S. 302

Majority

p. 302

(109 App. Div. 581)

MacCORMAC v. TOBEY.

(Supreme Court, Appellate Division, First Department.

December 8, 1905.)

Headnote

Libel—Vende. -

Where, in an action for a libel published in a newspaper, no justification was alleged, and there was no allegation that there was a publication of the libel outside of D. county, where the paper was in general circulation, the case should be tried in that county; the only questions involved being whether the article was a libel and the amount of plaintiff’s damages.

Appeal from Special Term, New York County.

Action by Paul MacCormac against Arthur G. Tobey. From an order denying a motion to change the place of trial from New York to Dutchess county, defendant appeals.

Reversed.

p. 303

Argued before O'BRIEN, P. J., and McLAUGHLIN, INGRAHAM, LAUGHLIN, and HOUGHTON, JJ.

W. E. Hoysradt, for appellant.

B. L. Kraus, for 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. We held in Rogers v. Butler, 71 App. Div. 613 , 75 N. Y. Supp. 536 , and in Woolworth v. Klock, 92 App. Div. 142 , 86 N. Y. Supp. 1111 , 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 $10 costs and disbursements, and the motion granted. All concur.