
    Zatter W. Rose, Appellant, v. Imperial Engine Company, Respondent.
    Fourth Department,
    January 3, 1906.
    Libel — when letter to plaintiff’s mother not privileged — when order setting aside verdict sustained.
    When an order setting aside a verdict for §1,000 in an action for libel does not disclose that it was not granted- because the verdict was excessive, the appellate court will not.reverse such order if it would not reverse it if granted on such ground.
    A letter written by an employer to the mother of a former employee charging him with burglary and larceny is not privileged when the charges- are wholly false which the slightest investigation would have shown.
    Appeal by the plaintiff, Zatter W. Rose, from an order of the Supreme Court, made at the Steuben Trial Term and entered in the office of 'the clerk of the county of Steuben on the 20th day of June, 1905, granting the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 30th day of August, 1904, to recover damages claimed to have been'sustained by an alleged libelous letter written by the defendant. After a trial a jury rendered a verdict in favor of the plaintiff for $1,000. ^.Upon defendant’s motion said verdict was set aside and an order granted for a new 'trial, from which order this appeal is taken.
    
      
      Warren J. Cheney, for the appellant. .
    
      Francis F. Wood, for the respondent..
   McLennan, P. J.:

The order setting aside the verdict and granting a new trial must be affirmed, because it does not appear from, the order that it was not granted upon the ground that the verdict of the' jury was regarded as excessive, and, if granted upon such ground, we would not feel justified in interfering with the discretion of the trial court

- in that regard. Indeed the opinion of the court, which we may consider in connection ■ with the order and other proceedings in determining the grounds upon which the order was made, indicates that the learned trial judge did consider that such verdict was - excessive. • .

In view of the fact that a new trial must be had, we deem it proper to discuss the principal question of law involved, which We consider was improperly decided upon the" trial, to wit, was the letter written by the defendant upon .which plaintiff’s cause of action is founded privileged ? ■

' The evidence tended to show, that the plaintiff, who was residing with his mother, and who through her influence' obtained employment with, the defendant, was a machinist, was engaged as ,súch at' the time in question. He had certain tools of his own ■ and others furnished to- him by the defendant, which Were kept in a locker provided for that purpose, to which thé plaintiff had the key. The plaintiff left the employment of the defendant,-which, so far as appears-, he had the right to do at will, and after a day or two absence, returned to the defendant’s mill for his tools. Hot having his key with him, he pried off the fastening ■ of his locker, took his oWn tools.and gave those belonging to the -defendant to another. - workman^all done in broad daylight and with the'- knowledge ofi several of defendant’s employees. Thereupon the defendant’s secretary wrote thé alleged libelous letter in question, addressed to the' plaintiff’s mother, in which he charged in substance that the plaintiff was guilty of .the crimes of" burglary and' larceny, and in effect-threatening that if the articles alleged to have been stolen were not immediately returned by express prepaid, we shall have him arrested on the charge of burglary and theft: We shall also notify his present employers of his theft of these tools so that he will not have an opportunity of stealing likewise from them.” The evidence tends to show that there was absolutely no legal ground for making the charges so made, and that the slightest investigation would have revealed the fact that they were wholly unfounded. But without making any investigation whatever the charges were made. Under the' circumstances disclosed by the evidence, the letter was libelous, unless privileged. The learned trial court held that it was privileged because addressed to the mother, the father being dead., We think the court erred in so holding. It -must be conceded that such a communication made to a young man’s mother might be more harmful to him than any other which could possibly be made. If believed it might render him not only homeless bjit penniless. In the case of Byam v. Collins (111 N. Y. 143) it is clearly pointed out under what conditions and circumstances a communication of this character may be held as matter of law to be privileged. In that case it is shown that the essential element to support the, claim of privilege is good faith, and that good faith can only be established by proving that ordinary care and prudence were exercised by the person making the charges to ascertain whether they were true or false.

, In the case at bar, upoti. the evidence contained in the record, the jury would have been justified in finding that the defendant, through its agents or otherwise, made no effort to ascertain whether or not the charges were true or false. They were wholly false, as the slightest investigation would have disclosed.

For the reasons above indicated we conclude that the order appealed from should be affirmed, but without costs.

All concurred ; Williams and Hiscook, JJ., in result only.

Order affirmed, without costs of this appeal in favor of either party.  