6 N.Y.S. 426 | N.Y. Sup. Ct. | 1889
This was an action brought to enjoin the defendants from using upon the covers of a publication called the “Secret Service Series” a picture.of Old Sleuth; also of the title of “Old Sleuth,” the detective, and of the pseudonym, “Old Sleuth,” as referring to Harlan P. Halsey, the autlufi- of certain stories published by both plaintiff and defendants. The trial resulted in an interlocutory decree denying the plaintiff’s claim to the exclusive right of the pseudonym, “Old Sleuth,” and sustaining his claim to the picture itself, and ordering a reference to ascertain the amount of the defendants’ profits. Upon the coming in of the referee’s report an application was made for an extra allowance, which was granted, but confined to the amount of the damages ascertained and declared by the referee, and upon the ground that the court had no power to grant an allowance on any other sum. The question of power, therefore, is presented for consideration. The Code, by section 3253, provides for an allowance, by its second subdivision, upon the sum recovered or claimed, or the value of the subject-matter involved. It is necessary, therefore, that there should be some evidence of value. In some of the reported cases the interlocutory decree has provided for the ascertainment of the value of the subject-matter, and doubtless with a view of determining to what extent an extra allowance should be granted; and, if the decree in this case had contained such a provision, it is not at all unlikely that an appeal would not have become necessary. Assuming, therefore, that the subdivision referred to has any application to this case, the next question which presents itself, and the only question, is this: Is there any evidence of value? Upon that subject the plaintiff, as appears from the record, testified that over $50,000 had been expended by him in advertising the stories containing the picture which the defendants had improperly employed in their enterprises; and he stated that he thought the right to the exclusive use of that picture as a trade-mark, and which he had secured by the interlocutory decree, was of the value to him. of at least $50,000; and he submitted that an allowance should be based.upon that amount. This statement of value was uncontnidicted. It is true, as suggested by Judge Jones in an able opinion delivered in Coates v. Goddard, 34 N. Y. Super. Ct. 118, that no money value could be assigned to the trade
Daniels, J., concurs. Van Brunt, P. J., concurs in the result.