
    Alfred Ginsberg, Respondent, v. The Union Surety and Guaranty Company, Appellant.
    
      Libel — a notice, sent by a surety company to persons who had certified to the character of one for whose fidelity it had given a bond, that he was a defaulter, is privileged — when malice will not be implied therefrom.
    
    Where a surety company, upon learning that an employee, for whose fidelity it had given a bond, had failed to turn over to his employer certain money collected by him and could not be found, sends to each of the persons, upon the faith of whose statements as to the character and integrity of the missing employee it had issued the bond, a letter stating: “We are now informed that Dinsberg has disappeared with certain cash collections and we are unable to locate him. In view of these conditions, we will be greatly obliged if you will give us such information as you have or may be able to obtain which may aid us in locating the defaulter,” such letter is privileged, and will not sustain an action of libel brought by the employee against the surety company, unless . the plaintiff shows malice on the part of the surety company; malice will not be implied from the mere sending of the letters.
    Appeal by the defendant, The Union Surety and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of April, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Eliot Norton, for the appellant.
    
      Louis J. Somerville, for the respondent.
   McLaughlin, J.:

In November, 1899, the plaintiff was employed by the F. Hollender Company as a salesman and collector, and before entering upon his employment he Was required to give to that company a bond of indemnity, in a specified sum, conditioned for the faithful performance of his duties, which he procured from the defendant. Before the defendant issued the bond it requested the plaintiff to " give it the names of five persons to whom it could refer as to his integrity. The names were furnished and the defendant having satisfied itself, by correspondence with such persons, as to the honesty and integrity of the plaintiff, issued the bond required by the F. Hollender Company and the plaintiff thereupon commenced to discharge the duties pertaining to his employment. He continued in such employment, however, only a few days when his. employer notified the defendant, in writing, that the plaintiff had failed to turn over certain moneys collected by him, and that he had neglected to call upon his employer, notwithstanding he had been requested to do" So, and give an explanation of his failure in this respect; and that the Hollender Company looked to the defendant to make the loss good, under its bond of indemnity. Upon receipt of this information the defendant, through its representative, called upon the Hollender Company, and having ascertained from it the truth of the statements contained in the communication, and that the plaintiff had failed and neglected to turn over certain moneys' collected by him, it thereupon wrote to the persons who had certified as to his character and integrity, as follows:

“ Dear Sir. —• On October 1st we mailed you one of our inquiry blanks, requesting you to send us such information as you had concerning Mr. Alfred Ginsberg Who applied to us for a fidelity bond as salesman and collector for the Fr. Hollender Co., of New York City, and it was owing tó the favorable character of your replies and your endorsement on the blank that we executed the bond as applied for. We are now informed that Ginsberg has disappeared with certain cash collections and we are unable to locate him. In view of these conditions, we will be greatly obliged if you will give Us such information as you have or may be able to obtain which may aid us in locating the defaulter. Awaiting the favor of your early ■ reply, we beg to remain,
“Yours truly,
“J. P. STEFFNER,
“ Superintendent.”

Sometime thereafter the plaintiff was located, and after considerable effort on the part of the Hollender Company he turned over to it all the money which he had collected, and thereafter he brought this action to recover damages for libel, .based upon the statement . contained in the letter just quoted, that he Was a defaulter. He-, had a verdict for $300, upon which judgment was entered from which the defendant has appealed.

At the close of plaintiff’s case the defendant moved to dismiss the complaint, substantially upon the ground that the letter was a privileged communication and the plaintiff had failed to show malice on the part of the defendant, in the absence of which he could not recover. The motion was denied and an exception taken. We are of the opinion that the motion should have been granted. The communication was a privileged one. The defendant had an interest in the subject-matter of it. It was written in good faith to the persons who had certified as to the integrity of the plaintiff. The defendant had been informed by the Hollender Company that the plaintiff had neglected to turn oyer, according to the terms of his employment, the money which he had collected, and it is nowhere disputed but that this information was correct. Therefore, the plaintiff was not entitled to recover unless he produced evidence from which a jury might find that the communication was not sent in good faith, but, on the contrary, was sent with the intent and for the purpose of injuring the plaintiff; in other words, that it .was malicious. ( Van Wyck v. Aspinwall, 17 N. Y. 190 ; Klinck v. Colby, 46 id. 427; Sunderlin v. Bradstreet, Id. 188.) The persons to whom the communication was sent, as already indicated, were the ones who the plaintiff had informed the defendant would, and who had certified as to his integrity. It was upon the strength of previous communications from these same persons that the plaintiff had obtained the bond of indemnity which enabled him to procure employment with the Hollender Company, and such persons having been instrumental in inducing the defendant to execute the bond, were properly notified of the plaintiff’s failure to comply with its conditions. Under such circumstances, the law does not imply malice from the fact of the publication. Something further must be proved, and that is malice, either express or implied, which must be the incentive" to the publication. (Hamilton v. Eno, 81 N. Y. 124; Haft v. First National Bank, 19 App. Div. 423.) Here there was not only no proof of malice, but the proof was uncontradicted that the statements contained in the communication were true. He was then a defaulter and was properly characterized as such. He had collected moneys belonging to his employer, which, without a proper explanation, he had neglected and refused to turn over according to the terms of his employment. It is true he subsequently claimed that a portion of the money which he had neglected to turn over was stolen from him without fault on his part, but his statement as to the facts connected- with the theft is not at all satisfactory, nor does it appear that it was satisfáctory to himself, because he did not promptly notify his employer of the loss, nor did he take any steps whatever to apprehend the thief. However, he did thereafter turn over to the Hollender Company all of the money which he had collected, but this was something like a month after he claimed the money had been stolen, and he then turned over not only what he claimed had been stolen, but other moneys which he conceded he had collectéd and used. He was, therefore, according to his own testimony, a defaulter, and the communication was not only privileged, but the statements contained'in it were true.

Upon both grounds, therefore, it seems to us the judgment and order must 'be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. •  