The plaintiff appeals from a judgment of $200 in his own favor, recovered in an action for damages by reason of the publication of an alleged libel. A reversal of the judgment is sought upon the ground that certain rulings made at the trial were erroneous, and so prejudiced the plaintiff's case that the verdict was wholly inadequate to the injury sustained. One of the most prominent of the rulings complained of is the admission of proof, in behalf of the defendant, of the names of the directors who had charge of the management of the defendant at the time of the publication of the paper which is the subject of the action. The General Term was of the opinion that the publication was privileged, and as the plaintiff was not, upon the facts, entitled to recover anything in this view, the rulings, even if wrong, were immaterial. The point was raised by the defendant at the trial, by motion for a nonsuit at the close of the plaintiff's case, and again before the case was sent to the jury. If the views of the court below, concerning the character of this publication, are correct, it must be admitted that the plaintiff has no just ground to complain, having recovered a small verdict when he was not entitled to any. In order to get a clearer view of the question a brief statement of the facts is necessary. During many years prior to September, 1882, the plaintiff was employed by defendant as its teller, and during the same, or a part of the time, one Wellington was its cashier, but their relations as officers or employes of the defendant terminated about that date. The cashier had given a bond for the faithful performance of his duties, and the defendant claimed that the sureties were liable thereon for the reason that the cashier had abstracted or misapplied the funds of the bank, and was in default in his accounts as such cashier in a *Page 429 sum amounting to several thousand dollars. The bond was signed by the cashier and five persons as sureties, of whom one, John M. King, died prior to the alleged breach thereof by the cashier, or prior to its discovery, and his daughter, Mrs. Daniels, and one Ends were appointed administrators. In the month of June, 1883, suit was brought by the bank on this bond, and the personal representatives of the deceased surety above named were made defendants with the other sureties, one of whom interposed an answer. The defendant thus answering procured an order from the court requiring the bank to furnish a bill of particulars of its claim, which was furnished, verified by the defendant Gleason, the new cashier of defendant, January 2, 1884, and served by the attorneys for the bank on the attorneys who appeared for the surety answering about the same date. This is the paper containing the libelous matter upon which the complaint in this suit is based. It was entitled in the action by the bank against the sureties, and contained a detailed statement of the items and dates of the funds which it was claimed the defaulting cashier had misappropriated. Some of the items were distinguished from the rest by a heading in these words: "Cash items drawn from the bank by collusion with the teller, without the knowledge of the officers of the bank." These items were quite numerous and amounted in the aggregate to $16,621.95. Before the service of this paper and shortly after the commencement of the suit on the bond by the bank, Judge DANIELS, in behalf of his wife, who was a defendant, as administratrix of her father, one of the sureties, called at the bank and requested Gleason, the cashier, to furnish him a statement of the claim of the bank upon the bond, in order, as he states, "to get a more complete account of the misappropriations." He told the cashier that he wanted as complete a statement as he could get "so that he could see how we stood," and "what the facts were." After some further conversation the cashier promised to make such a statement. which he did, in substantially the same form as the bill of particulars in the suit, and Judge DANIELS, on a day subsequent, *Page 430 called again, and it was delivered to him, either by the cashier himself or some one in his presence. There is no dispute as to these facts, from which it will be seen that the only reference to the plaintiff, contained in the statement, is through the use of the words "by collusion with the teller." The plaintiff's case, then, must stand, if at all, upon the publication of this paper on two different occasions and in two ways: First, by the delivery of the same to Judge DANIELS, who was interested in the claim upon the bond, and who had the right to inquire as to all the facts, by the cashier of the defendant, with a corresponding right and duty; and again by the delivery of the paper by defendant to its attorney in the suit upon the bond for service in the regular course of judicial proceedings and in compliance with an order directing a bill of items to be served. It is necessary, therefore, to refer to what, in the law of libel, is known as two classes of privileged communications, namely, where the party publishing and the party to whom delivered have a common interest in the matter to which the publication relates, and such publications as are made in the conduct and progress of a suit in a court of justice. The bill of particulars was but an amplification of the pleadings and stands upon the same ground as the complaint would had the bank been required by order to make it more definite and certain. In this class of publications the privilege is said to be as broad and absolute as in the case of words spoken by a member of a legislative body, however false and malicious the statement may be, providing it be relevant and pertinent to the issue or question involved. (Hastings v.Lusk, 22 Wend. 410; Odger on Libel Slander, 190-192.)
The privilege attached to the class first mentioned is not absolute but conditional and prima facie only, and can always be overcome by proof on the part of the plaintiff of express malice. Publications between parties relating to matters of business in which they have a mutual interest, differ from those in judicial proceedings in respect to privilege, in a very important particular. In the former case the party injured by defamatory words may still maintain an action, for *Page 431 the privilege only puts upon him the burden of proving malice in fact, while in the latter class the privilege is an absolute bar, however false and malicious the publication may in fact be. But the broader and more absolute privilege which the law gives to defamatory publications made in the course of judicial proceedings, must necessarily include the minor and more limited privilege which attaches to such publications when made between parties mutually interested in matters of business or of a confidential nature. Hence, if the publication in question, made to Judge DANIELS, was privileged, it must necessarily follow that the delivery by the defendant of the same paper to its own attorney, who had charge of the suit upon the bond, for service in compliance with an order of the court, is protected by at least a like privilege because the occasion of the publication and the circumstances under which the paper was delivered removes the presumption of malice as much in the one case as in the other. The question then is whether the delivery by the defendant of the paper to Judge DANIELS, under the circumstances disclosed by the evidence, was a privileged communication. Malice is an essential element to justify a recovery in any action to recover damages for a libelous publication. There are different modes of proving it, according to the circumstances under which the publication is made. In the case of defamatory publications, not privileged, the law infers or presumes malice; but if thepublication be privileged, and the privilege is not absolute, the plaintiff must prove malice in fact like every other essential fact in the case. If the publication in this case is of such a nature and was made under such circumstances as to remove the legal presumption of malice, the plaintiff was not entitled to recover, as it is not claimed that he gave any proof from which malice in fact could have been found. Privileged communications of the character now under consideration have been the subject of definition by courts and text writers since actions of libel and slander were known. It is sufficient for all purposes of this appeal to refer briefly to what this court has held from time to time on that question. In Lewis v. Chapman
*Page 432 (16 N Y 374), Judge SELDEN, speaking for the court, said: "Where the communication is made bona fide, in answer to inquiry from one having an interest in the information sought, or where the relation between the parties by whom and to whom the communication is made is such as to render it reasonable and proper that the information should be given, it will be regarded as privileged." In Klinck v. Colby (46 N.Y. 427), Judge FOLGER, speaking for the court, said that a privileged communication was one where "the occasion on which it was made rebuts the inference arising, prima facie, from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite and ill will," and that "such an occasion, is when a communication is fairly made by a person in the discharge of some private or public duty, legal or moral, or in the conduct of his own affairs in matters where his interests are concerned." And again, "a written communication between private persons concerning their own affairs is prima facie privileged, and though all that was said is under mistake, yet the words are not, for that reason alone, actionable. * * * Where both the party making and the party receiving the communication have an interest in it, it has never been doubted that it was privileged."
In Hamilton v. Eno (81 N.Y. 116), Judge FOLGER, again speaking for the court on this point, said: "There are certain communications which are privileged and prima facie excusable because of the occasion; that is, they will not be deemed libelous, though the party making them may not be able to prove them to be true, and may in fact be wrong in thinking them to be so. The effect of the privilege is this: That the law will not imply malice from the fact of the publication, and without malice, express or implied, there is no libel. To make the author of the charge liable in such case, actual malice must be shown to have moved him." In Byam v. Collins (111 N.Y. 143), EARL, J., giving the opinion of the court as to what constituted a privileged communication, quoted the definition given by Lord CAMPBELL in Harrison v. Bush (5 *Page 433 Ellis Black, 344): "A communication made bona fide upon any subject-matter in which the party communicating has aninterest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." It will be seen from these cases and others that might be cited that the privilege does not depend upon the caution which the person making the communication uses in the selection of proper words, or his care in avoiding the use of matter not strictly relevant or pertinent, but upon the occasion and the circumstances that gave rise to the statement. The publication may be false and defamatory, and a court might be able to see that it was unnecessary and irrelevant. Yet it is privileged if made under such circumstances and on such occasion as to remove from it the legal inference and presumption of malice, and a recovery can be had only when express malice is proved. (Vanderzee v. M'Gregor, 12 Wend. 545; Washburn v.Cooke, 3 Den. 110.)
The case of Klinck v. Colby (supra) cannot be distinguished from this, either in the principle decided or in its general features upon the facts. In that case certain New York merchants signed a paper in which they stated that they had "been robbed and swindled" by six persons named therein, and they agreed mutually to bear the expenses of prosecuting them criminally, and to contribute equally towards the payment of any judgment recovered against any of the parties signing the paper, arising by reason of any criminal complaint made against the accused persons by any of the signors. This court held that the publication was privileged, and no recovery could be had without proof of express malice. In its legal and moral features, that case, as it seems to me, was much stronger for the plaintiff than the one at bar. That paper was an agreement on the part of the defendants to furnish money for the expenses of a prosecution on a charge of crime, a duty which devolves upon the public authorities, while in this case *Page 434 the papers are delivered by the cashier or some employe of a bank to a person interested in the payment of a claim which it held. Granting that the purpose and motive of furnishing money to aid in the punishment of a crime may be lawful and even laudable, it is still difficult to see why the use of the terms "robbed and swindled" were at all necessary or relevant. While the court said that they were not irrelevant, it is plain enough that the decision went upon the ground that the circumstances under which the publication was made removed the presumption of malice. The argument of the learned counsel for the plaintiff assumes that the privilege does not exist if the reference to the plaintiff was not germane to the subject of the inquiry. If it be conceded that the reference to the plaintiff was unnecessary and irrelevant, yet it was published on an occasion and under circumstances that rendered the whole paper prima facie privileged, and even a statement not strictly relevant, in the view of this court, is not actionable except upon proof of actual malice. And the mere publication of the paper on the occasion and under the circumstances described did not prove that fact. Moreover it is not quite clear that the statement was irrelevant, and so known and understood by the parties. The application of Judge DANIELS called for all the facts and as full a statement as he could get, and in response to that the defendant might properly state the manner of the defalcation, and the persons who were supposed to have aided in it without responsibility except upon proof of express malice. The answer alleged that there was a prior defalcation known to defendant and not disclosed to the sureties; an allegation which called for a full statement as to the manner in which the funds were abstracted, and that fact concealed. And, certainly, the reference to the plaintiff in this paper was as relevant and pertinent to the general subject. as was that designating the plaintiff as one who had "robbed and swindled" contained in the paper in Klinck v. Colby (supra). In such cases it is the actual malicious intent, and not the strong or irrelevant words that constitutes the libel, and in this case such intent was not established. The *Page 435 inference arising from the circumstances was sufficient to repel all presumptions of malice, and, therefore, the burden was put upon the plaintiff to show that it existed in fact. The learned counsel for the plaintiff may possibly be correct in his position, that the defendant could have transacted its business with Judge DANIELS and its own attorneys without making any such reference to the plaintiff as it did, but that circumstance is of no importance except in support of an allegation of express malice. In the language of Judge SELDEN, in Lewis v. Chapman (supra), "All that is necessary to entitle such communications to be regarded as privileged is that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of an appearance of officious intermeddling with the affairs of others." It has been held that no action lies against a party who, in the course of a legal proceeding, makes an affidavit in support of a summons taken out in such cause which is scandalous, false and malicious, though the person scandalized, and who complained, was not a party to the cause. (Henderson v.Broomhead, 4 H. N. 569.)
There is no good reason for limiting or weakening the rule of privilege applicable to publications made by one to another in regard to matters of business in which both are interested. Whenever such occasions are used as a cover to gratify personal spite, by intentionally or wantonly assailing personal reputation, ample redress can always be given to the injured party upon proof that the publication was actually inspired by malicious motives, and this is sufficient for every purpose of justice. The General Term was correct in holding that the matter was privileged, and its judgment should be affirmed.
All concur with ANDREWS, J., except EARL and O'BRIEN, JJ., dissenting.
Judgment reversed. *Page 436