
    George W. Perkins, Pl’ff, v. Henry H. Heert et al., Def’ts.
    
      (New York Superior Court, Special Term,
    
    
      Filed November, 1895.)
    
    1. Costs—Extra allowance.
    An extra allowance of costs, in an action to restrain the use of a trade mark, is to be computed, not on the mere amount of damages recovered, but on the value of the trade-mark.
    3. Same.
    But such allowance under § 3353 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.
    3. Same.
    In this case it was held that the extra allowance could not exceed the sum of $100.
    Action by George W. Perkins against Henry H. Heert and others. Plaintiff moves for an extra allowance.
    August C. Nanz, for motion;
    William H. Klinker, opposed.
   GILDERSLEEVE, J.

This is a motion for an extra allowance under section 3253 of the Code, on the ground that the case was 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 $75. The plaintiff claims an extra allowance, based, not on the amount recovered, but on the value of the subject-matter involved,—i. e. the trade-mark,—and he presents an affidavit putting its value at $100,000. But, as the Code prohibits an extra allowance of over $2,000 (section 3254) in such a case,, he limits his claim to that amount. It is true that a valuable trade-mark may, for the purposess 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 ainount of damages recovered, but on the value of the trade-mark. See Munro v. Smith, 6 N. Y. Supp. 426. 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.  