
    Lewis E. Waterman et al., Resp’ts, v. Edward L. Shipman et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Evidence—Second trial.
    Where the court of appeals has determined that certain facts are not a» defense to the action, evidence to prove such facts is properly excluded on a subsequent trial of the action.
    2. Costs—Extra allowance.
    Where an action to restrain the infringement of a trademark has been, difficult and extraordinary, and the trademark is proven to, be worth $5'i,000 and the profits therefrom #3,000 a year, an extra allowance of $250 is proper.
    Appeal from judgment in favor of plaintiffs, and from order granting an extra allowance of costs.
    
      Action to restrain defendants from using an alleged trademark of plaintiffs, consisting of the name “ Waterman’s Ideal Fountain Pen,” and to compel them to account for all profits realized by them from the sale of fountain pens stamped with that name. For report of former appeal, see 30 St. Rep., 152; 41 id., 514.
    
      Antonio Knauth, for app’lts; Walter S. Logan, for resp’ts.
   Barnard, P. J.

—The court of appeals has decided that the plaintiffs have a right to an injunction in this case prohibiting the defendants from using the word “ Ideal ” as applied by the plaintiff, L. E. Waterman, to fountain pens of his own manufacture. The manufacture of pens by the defendants so marked is admitted ; the sale is admitted by the answer. The facts stated in the eighth defense were held not to authorize the use of the word “ Ideal,” and therefore proof of facts tending to establish the same was properly excluded.

The judgment was proper and must be affirmed, with costs.

The order for an extra allowance of $250 was properly made. The case was difficult and extraordinary. The trademark is proven by affidavit to have been worth $50,000 at least and the profits from the trademark to be $3,000 a year.

The order for the additional allowance is fully supported by Maurice v. Smith, 17 Civ. Pro., 158, and should be affirmed, with costs and disbursements.

Dykman and Cullen, JJ., concur.  