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 *143answer, 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.