The contention of the defendants is that an action will not lie for a removal caused by false and malicious reports, made by a superior employee to the head of a department or common employer concerning the supervised employee, the argument being that it was the duty of the defendants to supervise the plaintiff and report to their superior, the commissioner, the faults, misconduct or inefficiency of the plaintiff, because of which the rule declared by this court in Warschauser v. Brooklyn Furniture Co. (159 App. Div. 81), and in the authorities cited, has no application. As they put it, “ The broad rule of public policy forbids the penalization of free criticism of public officers. Although actions may lie for defamation, even by public officers, if privilege is exceeded, the courts will not go further and seek to punish those who have secured removals, even .maliciously and by false statements. The danger to our institutions would be too great if such actions were permitted. All the more abhorrent it would be to public policy if those specifically charged with the duty of reporting delinquencies had their mouths closed by the prospect of such actions.”
It is true, of course, that a supervising employee, acting in good faith, may truthfully report to his superior the acts, delinquencies, disqualifications and inefficiency of subordinate employees over whom he is charged with the duty of supervision, and thereby procure their discharge, without liability to the discharged employee, even though his act in so doing was prompted by ill-will, enmity or the desire to secure such discharge, for the reason that in so doing he is exercising a legal right and performing his legal duty; but no right is possessed by a superior employee to falsely, without regard to the truth, and actuated only by enmity and malice, make an unjustified and malicious report to a superior officer, for the purpose of accomplishing the removal of an honest, faithful and competent employee, who stands in the way of graft, nor can he do so without incurring liability for the damages occasioned by his malicious, false and unjustified act.
No case is called to our attention by the defendants, and I am aware of none, which sustains directly or inferentially such an abhorrent principle. In this connection we are *703referred to Lancaster v. Hamburger (70 Ohio St. 156; 65 L. R. A. 856), in which it was held that a patron of a street railway company incurred no liability to a conductor by reporting to the superintendent of the company the conductor’s misconduct toward a passenger, although in making the report he was prompted by ill-will and a desire to secure the conductor’s discharge, the ground upon which such decision was based being that in so doing such patron was exercising his legal right, if not, indeed, performing his duty. This case does not sustain the defendants’ contention, because the report was true, which is not the case presented by the complaint in the action at bar.
The defendants rely upon the proposition that their communications to the commissioner, alleged in the complaint and relied upon by the plaintiff as establishing his cause of action, were privileged communications because of their duty and privilege to make known to their superior the incompetency of their subordinate. This privilege is qualified, that is, it does not extend or protect beyond such statements as are made in the performance of their duty, believing them to be true (Bingham v. Gaynor, 203 N. Y. 27, 31), and for words not material and spoken falsely and maliciously an action will lie. (Lathrop v. Hyde, 25 Wend. 448.) The presence of malice in reporting to the common master or employer is immaterial, provided the reporting employee keeps within his qualified legal privilege in exerting his influence. In the case at bar the presence of the reasonable and justified performance of a duty is inconsistent with the fraud, malice and purpose of injury alleged to have actuated the defendants, and it is upon the allegations of the complaint which exclude any underlying duty or justifiable motive or privilege of the defendants in their performance of the acts complained of, that the plaintiff’s right of action rests. The case presented is within the principle sustained by this court in Warschauser v. Brooklyn Furniture Co. (supra), in which, after stating the general rule applicable to this class of cases to be as declared in Walker v. Cronin (107 Mass. 555, 562), that “ 1 In all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damages.’ The intentional causing of such *704loss to another, without justifiable cause, and with the malicious purpose to inflict it, is of itself a wrong,” in adopting the rule declared in Chipley v. Atkinson (23 Fla. 206), Mr. Justice Stapleton says: “In the well-considered case of Chipley v. Atkinson (23 Fla. 206) it was held that an action lies in behalf of an employee against a person who has maliciously procured the employer to discharge such employee from employment, where the period for which the employment was to continue is not certain, if damage result from the discharge, even though, from inability to ascertain the amount of the damage, a verdict for nominal damages only should result. In that case the court said.: ‘ From the authorities referred to in the last preceding paragraph, and upon principle, it is apparent that néither the fact that the term of service interrupted is not for a fixed period nor the fact that there is not a right of action against the person who is induced or. influenced to terminate the service or to refuse to perform, his agreement, is of itself not a bar to an action against the third person maliciously and wantonly procuring the termination of or a refusal to perform the agreement. It is the legal right of the party to such an agreement to terminate it or refuse to perform it, and in doing so he violates no right of the other party to it, but so long as the former is willing and ready to perform, it is not the legal right, but is a wrong on the part of a third party to maliciously and wantonly procure the former to terminate or refuse to perform it. Such wanton and malicious interference for the mere purpose of injuring another is not the exercise of a legal right. Such other person who is in employment by which he is earning a living or otherwise enjoying the fruits and advantages of his industry or enterprise or skill, has a right to pursue such employment undisturbed by mere malicious or wanton interference of annoyance.’ ” This rule applies to employees of a municipal corporation, as well as the employees of a corporation or individual, and disinterested third persons who, for the sole purpose of injuring a subordinate employee, willfully and maliciously make false statements or reports, knowing them to be false, to his superior employee having the right and power to employ and discharge, or the common employer, resulting in actual damage to the subordinate employee, *705without fault, neglect or dereliction of duty on his part and caused solely by, and resulting from such wrongful and malicious acts and false statements and reports of the supervising employee. The complaint alleges a cause of action against municipal employees — not officers — of this character, based solely upon intentional, wrongful and malicious acts of the defendants, calculated, intended to and resulting in damages to the plaintiff, depriving him of his lawful employment and injuring his good name, character and reputation, which were done and made by the defendants with the unlawful, sole and wholly unjustifiable purpose and intention of injuring and damaging him. No rule of public policy prevents maintaining such an action, nor does it interfere in any manner with the right of a superior employee to truthfully report to his superior or the common employer, the acts, conduct, habits, disqualification or inefficiency of a co-employee, personally known by him to exist, or, if based on hearsay, believed by him to be true, even though in so doing he is actuated by ill-will, enmity or desire to procure the discharge of such subordinate employee.
A cause of action is alleged and the exception to the dismissal of the complaint is sustained, costs to abide the event, and the action remitted to the Trial Term for trial upon the merits.
Jenks, P. J., Stapleton, Putnam and Blackmar, JJ., concurred.
Exception to dismissal of the complaint sustained, costs to abide the event, and action remitted to the Trial Term for trial upon the merits.