SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. entitled by law to serve during good behavior, or who cannot under existing law be removed except for cause, shall be retained in like positions and under the same conditions by the corporation constituted by this act, to serve under such titles and in such way as the head of the appropriate department or the mayor may direct." There can be no doubt but that in terms this section is broad enough to embrace the relator. This view is scarcely contended against. It also appears that the office held by the relator is a subordinate office under the decision we have cited, construing section 1536, and also by virtue of the New York charter provision (§ 728). It, therefore, follows that the relator is protected, unless section 779 is controlling. (People ex rel. Corrigan v. The Mayor, 149 N. Y. 215; People ex rel. Fallon v. Wright, 150 id. 444.) The views expressed by this court through Mr. Justice CULLEN, in People ex rel. Earl v. England (16 App. Div. 97), do not conflict with this holding. It was therein recognized that a subordinate officer was protected by the veteran acts, adopting, in this respect, the language of ANDREWS, Ch. J., in People ex rel. Fonda v. Morton (148 N. Y. 156). That relator was a subordinate we have already announced, and that he was such an officer as is protected must necessarily follow. The charter must be construed as a whole, and upon this subject it seems to have been the evident policy of its framers to extend the protection guaranteed by the veteran acts to all persons embraced within their terms, who should be transferred from the positions occupied by them in the several municipalities consolidated to similar positions in the consolidated city. There would seem to be no reason why the rule should not be applicable to public servants under one government as was operative under the other, as the character of the duties performed remains, in all substantial particulars, the same, and is exercised in practically the same territory. In this respect we approve of the reasoning by Mr. Justice CHASE in Matter of Jacobus (N. Y. L. J. May 25, 1898). Such being the manifest policy, section 779 must be deemed to have been enacted in subordination to its provisions, and, in the absence of words expressly excepting the office from the operation of the prevailing policy of the statute, no different rule can obtain. There may be cases where there is an inconsistency in applying such rule, as where the scheme of the SECOND DEPARTMENT, JULY TERM, 1898. App. Div.] charter would be defeated, or different commands of the statute could not be recognized and force given to it. Such questions will be disposed of as they arise. We find nothing applicable to the present question requiring a different interpretation. Nothing in People ex rel. Griffin v. Lathrop (142 N. Y. 117) conflicts with this view. There it was manifestly destructive of the service to enforce the preference, and the act which gave the power of removal was passed subsequent to the act creating the preference. No such question arises here, as the two sections are but part of an entire scheme, and no such result flows from enforcing the general policy as the court there considered and found. It follows that the judgment should be reversed, and judgment ordered for the plaintiff, in accordance with the prayer of the complaint. All concurred, except WOODWARD, J., absent. Judgment reversed, and judgment ordered in favor of the plaintiffs in accordance with the prayer of the complaint, with costs. ANNIE OWEN, Respondent, v. J. S. OGILVIE PUBLISHING COMPANY, Appellant. Libel-the dictation of a letter by the manager of a corporation to its stenographer is not a publication thereof. The fact that a letter, having reference to the business of a corporation and containing libelous matter, is dictated by the manager of the corporation to a stenographer employed by it, who writes it out in shorthand, typewrites it and mails it, both servants of the corporation being engaged in the performance of duties which their respective employments require, does not constitute such a publication of the libelous matter contained in the letter as will support an action of libel against the corporation. APPEAL by the defendant, J. S. Ogilvie Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of May, 1898, upon the verdict of a jury, rendered after a trial. at the Kings County Trial Term, and also from an order bearing APP. DIV.-VOL. XXXII. 59 SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. date April 21, 1898, denying the defendant's motion for a new trial, made upon the minutes. A. W. Gleason, for the appellant. Albert A. Wray, for the respondent. HATCH, J.: Action to recover damages for an alleged libel claimed to have been published by the defendant, a corporation. The act complained of was committed by the defendant's general manager. The libel consisted in the dictation of a letter by the defendant's general manager to a young lady employed by the corporation as a stenographer and typewriter in the private office of the general manager. The letter was written in reference to the business of the corporation, and had relation to a small sum of money missing from the cash drawer, and the letter expressed a suspicion that the money had been taken by the plaintiff, during her employment by the defendant, on the day before. The law is elementary that there can be no libel without a publication of the libelous matter. We may assume that this letter was libelous. Was there a publication of it by the corporation, within the meaning of the law? Ordinarily, when a letter is written and delivered to a third person, with the intent and expectation that it shall be read by such person, and it is actually read, the publication is complete. (Youmans v. Smith, 153 N. Y. 214.) Has such rule application to the facts of this case? The letter was dictated to the stenographer, and was by her copied out, was signed by the manager, was then inclosed in an envelope, and sent by mail to the address of the plaintiff. It may be that the dictation to the stenographer and her reading of the letter would constitute a publication of the same by the person dictating it, if the relation existing between the manager and the copyist was that of master and servant, and the letter be held not to be privileged. Such, however, was not the relation of these persons; they were both employed by a common master, and were engaged in the performance of duties which their respective employments required. Under such circumstances we do not think that the stenographer is to be regarded as a third person in the sense that either the dictation or the subsequent reading can be regarded as a publication by the SECOND DEPARTMENT, JULY TERM, 1898. App. Div.] corporation. It was a part of the manager's duty to write letters for the corporation, and it was the duty of the stenographer to take such letter in shorthand, copy it out and read it for the purpose of correction. The manager could not write and publish a libel alone, and we think he could not charge the corporation with the consequences of this act, where the corporation, in the ordinary conduct of its business, required the action of the manager and the stenographer in the usual course of conducting its correspondence. The act of both was joint, for the corporation cannot be said to have completed the act which it required by the single act of the manager, as the act of both servants was necessary to make the thing complete. The writing and the copying were but parts of one act, i. e., the production of the letter. Under such conditions, we think the dictation, copying and mailing are to be treated as only one act of the corporation; and as the two servants were required to participate in it, there was no publication of the letter, in the sense in which that term is understood, by delivering to and reading by a third person. There was in fact but one act by the corporation, and those engaged in the performance of it are not to be regarded as third parties, but as common servants engaged in the act. We do not deny but that there can be publication of a libel by a corporation by reading the libelous matter to a servant of such corporation, or delivering it to be read. Where the duties devolvedupon such servant are distinct and independent of the process by which the libel was produced, he might well stand in the attitude of a third person through which a libel can be published. But such rule may not be applied where the acts of the servants are so intimately related to each other as is disclosed in the present record and the production is the joint act of both. As there was no other proof of publication aside from the reading by the stenographer, it is insufficient to uphold a finding that the libel was published. Nothing in Kiene v. Ruff (1 Iowa, 482) conflicts with this view. That case presented the ordinary question of delivery, by the person writing the libel, of the libelous matter to a third person to transcribe the same. The delivery for that purpose was held sufficient to constitute a publication, where such person actually transcribed the matter and forwarded the letter. Substantially similar doctrine SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. is contained in Snyder v. Andrews (6 Barb. 43). Such rule is not questioned, but the particular facts of this case remove it from its operation. It follows that the judgment should be reversed and a new trial granted, costs to abide the event. All concurred, except WOODWARD, J., absent. Judgment and order reversed and new trial granted, costs to abide the event. 3601 468 LOUISA J. BLACK, Appellant and Respondent, v. THE BROOKLYN HEIGHTS RAILROAD COMPANY, Respondent and Appellant. Who may enjoin a street railroad constituting a public nuisance special damage must be shown by one not owning the fee of the street — discretion of the court in granting the injunction - extra allowance — practice — records on appeal. Although the unauthorized maintenance of a railroad in a city street constitutes it a public nuisance, an owner of property bounded by the exterior line of the street, not owning the fee thereof, is not entitled to enjoin such maintenance and operation of the railroad, in the absence of proof that he has suffered special damage therefrom. Even where it appears, in such a case, that special damage has resulted to the owner, and that the railroad was constructed without the necessary consents having been obtained, it rests within the discretion of the court either to grant an immediate injunction or to give the railroad company a reasonable time within which to obtain such consents. In such a case, in order to justify the granting of an additional allowance, proof must be given, or it must appear what the value of the subject-matter of the action was. Where separate appeals are taken by the plaintiff and defendant respectively, each of whom makes up a separate record for the presentation of his appeal, each must stand upon the particular record so made by him for the assertion of the legal rights to which he claims to be entitled. APPEAL by the plaintiff, Louisa J. Black, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 26th day of March, 1898, upon the decision of the court, rendered after a trial at the Kings County Special Term, as adjudges and decrees that the defendant is entitled to maintain its single-track railroad upon Johnson street in the city of Brooklyn, |