Frank W. Woolworth, Respondent, v. Jay E. Klock, Appellant

Frank W. Woolworth, Respondent, v. Jay E. Klock, Appellant. Venue — action for libel in which, a plea, in mitigation of damages is interposed,—■ the county in which the publication was made held to be the proper place of trial. In an action brought to recover damages for the publication of a libel in a newspaper published in Ulster county, the defendant interposed an answer consisting solely of a plea in mitigation of damages; The action was brought in the county of New York, but there was no averment in the complaint that the . libel was published in that county. All the witnesses upon the subject of the plaintiff's damages, with the exception of the plaintiff himself, resided in Ulster county. jBeld, that the venue of the action should be changed to Ulster county. Appeal by the ■ defendant, Jay E. Klock, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of October 1903, denying the defendant’s motion to change the place of trial of the action from the county of New York to the county of Ulster. A. T. Clearwater, for the appellant. Joseph JB. Sandy, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : 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 such subject, save the plaintiff, are shown to reside there. Within the ruling of this court in Rogers v. Butler (71 App. Div. 613) the proper place for the trial of the action would seem to be the county of Ulster. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted. Present—Van Brunt, P. J., Patterson, Ingraham, Hatch and Laughlin, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted.