(dissenting). The judgment appealed from should be reversed and the complaint dismissed upon the ground the article complained of was substantially true, and hence not libelous. Upon the further ground also, that the publication was privileged.
Plaintiff sued for damages for an alleged libel claimed to have been contained in a letter reading^ as follows: “ Mr. Arthur M. Day, whose address is 29 West Kingsbridge Road, New York City, called on us some time ago in reference to employment with us. At that time he gave your name as reference and it has been sent to our bonding company.
“ We gave Mr. Day some material belonging to the U. S. Chamber of Commerce and .have asked him several times to return this to us but he has failed to do so. We feel we have given him sufficient time but hesitate to turn his name over to the bonding company before notifying you.”
The defendant sent the above letter to each of four gentlemen whose names plaintiff had given as references upon making application to the defendant for a position as salesman. Between June 8 and 13, 1928, defendant delivered to the plaintiff certain material for use in the sale of its product, with the understanding that it *452represented considerable effort and expense, that plaintiff was to take particular care of this and return it if he did not enter defendant’s employ or after entering left that employment. Plaintiff became interested in another proposition and laid aside the defendant’s material. He did not communicate with the defendant ggain until July 23, 1928. In the meantime the defendant had sent the plaintiff four letters requesting the plaintiff to call or return the sales material belonging to the defendant, and also had attempted unsuccessfully to reach plaintiff by telephone. On July 12, 1928, the letter which is the basis of this action was sent. The defendant conceded that the statement in said letter that the names of plaintiff’s references had been sent to the bonding company was untrue. All the other statements in said letter are in accordance with the facts, and hence, under well-settled principles of law, do not in themselves constitute a libel. (36 C. J. 1231, § 193: Robinson v. Battle, 148 App. Div. 230.) The question presented, therefore, is whether the inclusion of the aforesaid false statement converts the letter into a libel upon the plaintiff.
Said untrue statement was concerning an act alleged to have been performed by the defendant and not by the plaintiff. It in no wise affected the truth of the statements concerning the plaintiff. It, therefore, was an immaterial statement, and did not make libelous that which without it clearly was not libelous.
Secondly, the facts show that the communication was privileged. It was sent to the persons whom the plaintiff had given as references, in an endeavor to recover property intrusted to the plaintiff to the immediate return of which the defendant concededly was entitled. Defendant was. privileged to call to the attention of those whom plaintiff had submitted as vouching for his integrity, the fact that- plaintiff had failed to return said property in the face of numerous requests. Any- possible imputation of dishonesty arising out of these facts was not created by the act of defendant, but instead, arose from the neglect of the plaintiff to comply with his agreement and cast upon him the burden of explaining such neglect to his references. Defendant was entitled to apply in good faith to the latter for aid in recovering defendant’s property. There is no implication of malice from the facts, and no claim or proof of express malice on the part of defendant. Under such circumstances the communication was privileged. In Ginsberg v. Union Surety & Guaranty Co. (68 App. Div. 141) the plaintiff was a salesman who had been required by his employer to furnish a bond. He gave the bonding company the names of five references. The employer notified the bonding company that the salesman had failed to turn over money collected by him and had *453made no response to requests to call. Thereupon the bonding company wrote the references a letter which contained the following statements: “ 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.” The court held that the letter was a qualifiedly privileged communication and that no recovery could be had thereon in the absence of actual malice, saying, by McLaughlin, J. (at p. 143): “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. * * * 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. * * * Here there was not only no proof of malice, but the proof was uncontradicted that the statements contained in the communication were true.”
The judgment appealed from should be reversed, with, costs, and the complaint dismissed, with costs to the appellant.
Judgment affirmed, with costs.