
    George W. Perkins, Plaintiff, v. Henry H. Heert et al., Defendants.
    (New York Superior Court
    Special Term,
    November, 1895.)
    In an action to restrain the use of a trade mark and for an /accounting of profits from such use, an extra allowance is to be computed, not on the mere amount of damages recovered, but on the value of the trade mark.
    An extra allowance, however, should be what' the court may deem a reasonable and moderate counsel fee in the cause, within the limits prescribed by section 3254 of the Code.
    Motion for extra allowance.
    . Briesm dé Knauth, for motion.
    
      Wise dé licMenstewi, opposed.
   Qildersleeve, J.

This is a motion for an extra allowance under section-3253 of the Code, on the ground that the case yras' a difficult and extraordinary one. The action was to restrain defendants from using a certain trade mark; and for an accounting and the payment of profits arising from defendants’ use of such trade mark. The trial resulted in plaintiff’s favor, and judgment was rendered restraining defendants from using such trade mark and granting an accounting. The referee appointed to take such accounting found the sum due from defendants to be seventy-five dollars. The plaintiff 'claims .an extra allowance, based, not on the amount recovered, but on the value of the subject-matter involved,';*, e., ■the trade mark, and he present's an affidavit putting its value 'at $100,000. But as the- Code prohibits an extra allowance of over $2,000 (§. 3254) in such a case, he limits his claim to that amount. It is true that a valuable trade mark may for the' purposes of computing the allowance additional to costs, in an action for its infringement, be regarded like an easement, and the allowance is to be computed, not on the mere amount of damages recovered, but on the value of the trade mark. See, Munro v. Smith, 23 Abb. N. C. 276. But the allowance in addition to costs, under section 3253.- of the Code, should be what the court" may deem a reasonable and moderate counsel fee in the cause, within the limits prescribed by the Code. See Sheldon v. Allerton, 2 Sandf. 630, It seems to me, from an examination of the papers.before me .on this motion, that the extra allowance could not, exceed the sum of $100, .which is accordingly-granted.

Ordered accordingly.  