8 A.D.2d 599 | N.Y. App. Div. | 1959
Judgment unanimously modified, in the court’s discretion, to the extent of eliminating therefrom the third decretal paragraph and substituting in place thereof a provision that the costs of the first and second references be awarded to plaintiff and against the defendants and as thus modified the judgment is affirmed, with costs and disbursements to plaintiff-appellant. The injunction and the resulting order of reference were occasioned solely by defendants’ unfair competition. On a prior appeal (283 App. Div. 937) we held that despite the difficulty with which plaintiff would be confronted in attempting to establish damages, it nevertheless had the right to pursue that course if so advised. While we agree with the court below that plaintiff has failed in that respect, we do not consider it a sufficient ground for imposing on plaintiff the costs of the reference. On the contrary those costs should be borne by defendants, whose acts made the reference necessary. Settle order on notice. Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and Stevens, JJ.
