Dr. Jaeger's Sanitary Woolen System Co. v. Le Boutillier.

seeking an accounting, where the judgment of the court is final that such an accounting cannot be had, and for the reason that any further claim is merely incidental. Moore v. Appleby, 108 N. Y. 237.

But it is further contended that there was a value to the trade-mark, and that, therefore, something existed and was in controversy coming within the requirement of the law, as above stated. What possible value a mere trade-mark right can have per se, ascertainable by a money standard, it is difficult to understand in the absence of proof. But when it is adjudged that no trade-mark right exists at all, it is more difficult to comprehend what value can be attached to that which is non-existent. Nothing was really involved but the right to the trade-mark.

The case of Munro v. Smith (17 N. Y. Civ. Pro. 158)* is referred to as being an authority in favor of the granting of an allowance to the defendant. No such deduction is to be fairly drawn from that case. The learned judge who wrote the opinion there made careful reference to Coates v. Goddard (34 Super. Ct. [2 J. & S.] 118), in which it was held that no money value could be assigned to a trade-mark; and it is quite evident that the allowance was made in the Munro case on the undisputed testimony that the trade-mark was worth the sum of $50,000.

The orders, so far as they provide for a reference as to an extra allowance, are reversed, with costs and disbursements; but in the Le Boutillier case so much of the order as provides for ascertaining damages on the injunction is affirmed.

VAN BRUNT, P.J., and O'BRIEN, J., concurred.

*An appeal taken to the court of appeals from this decision was dismissed, see Memo., 119 N. Y. 630.

Gowing v. Levy.

GOWING et al., RESPONDENTS, v. LEVY et al., APPELLANTS.

SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; FEBRUARY, 1892.

§§ 977, 3251.

Costs-trial fee when not taxable-term fee when not taxable-effect of notice of trial for term for which note of issue not filed.

Where a plaintiff is granted leave to amend his complaint upon paying defendant's costs and disbursements to date, and there has beek no trial, the defendant is not entitled to a trial fee. Where a note of issue was filed June 12, 1889, and notice of trial first given for the February, 1891, term, and the case then appeared upon the calendar and went off by stipulation between the parties, and the plaintiff in December, 1891, was permitted to amend his complaint on paying costs to date-Held, that the defendant was not entitled to any term fees.

Where a note of issue was not filed for any month for which a cause was noticed for trial, such notice is ineffectual and the cause cannot be moved for trial, because of its service, although a note of issue had previously been filed. While but one notice of trial is required to be served in the first judicial district, it is the service of that notice that calls upon the party to ascertain the situation of his cause upon the calendar, and when he receives it for a specific term he is not bound to look back upon the calendar to see if his adversary has put it on for some prior or subsequent term.

(Decided February 18, 1892.)

Appeal by the defendant from an order of the New York county special term denying a motion for a new taxation of costs.

The facts appear in the opinion.

Gowing v. Levy.

Ira Leo Bamberger, for defendants' appellants.

Henry Stanton, for plaintiffs, respondents.

PATTERSON, J.-In December, 1891, Mr. Justice ANDREWS granted a motion allowing the plaintiffs to serve an amended complaint on payment of the defendants' costs and disbursements to date, to be taxed by the clerk. On presentation of the bill of costs the clerk disallowed a trial fee of $30 and five term fees of $10 each. The cause had not, prior to February, 1891, been reached in its order on the calendar, but was awaiting its turn. An application was made to the court to review the taxation of the clerk, and, after hearing the parties, Mr. Justice BARRETT sustained the refusal of the clerk to allow the items insisted upon by the defendants. In this he was clearly right. There had been no trial, and consequently a trial fee was not taxable. Studwell v. Baxter, 33 Hun, 331. As to the five term fees, there was enough before the court to show that the case was on the calendar under notice of trial for the first time in February, 1891, and then went off by a stipulation between the parties. These facts are shown by the affidavit of Mr. Stanton, which very materially modifies what was sworn to by Mr. Levy as to the case having been duly noticed for trial for previous months, and it is also thus made to appear that there was no correspondence between the note of issue filed June 12, 1889, and the first notice of trial given for the February term, 1891. A note of issue not having been filed for any month for which the cause was noticed for trial, such notice was ineffectual, and the cause could not be moved for trial because of its service.

While but one notice of trial is required to be served in this judicial district, it is the service of that notice that calls upon the party to ascertain the situation of his

In re City of Middletown.

cause on the calendar; and when he receives it for a specified term he is not bound to look back upon the calendar to see if his adversary has put it on for some prior or subsequent term. Code Civ. Pro. § 977.

The order was right, and must be affirmed, with $10 costs and disbursements.

VAN BRUNT, P.J., concurred.-O'BRIEN, J., concurred in result.

In re CITY OF MIDDLETOWN.

SUPREME COURT, SECOND DEPARTMENT, GENERAL TERM; FEBRUARY, 1892.

$ 46.

Commissioners to lay out streets-when not disqualified because related to one owning property affected.

One appointed a commissioner in a proceeding to lay out streets in a city pursuant to the provisions of an act requiring the appointment of three disinterested freeholders for that purpose is not disqualified because he stands in the relation of brother-in-law to a party whose interest is likely to be affected, without proof of some direct interest of his own in the affair [1].

In re Dodge & Stephenson Manufacturing Co. (77 N. Y. 101) followed [2].

Section 46 of the Code of Civil Procedure forbidding a judge from sitting or taking part in a decision of any case or matter if he is related by consanguinity or affinity to any party to the controversy within the sixth degree does not apply to commissioners appointed in a proceeding to open and lay out streets solely for the purpose of looking into the general necessity and bearing of the street extensions, where their decision is subject to the subsequent scrutiny and oversight of the court both as to the

In re City of Middletown.

amount of damages and in every other respect. [8] Said provision

of the Code should be strictly construed [4].

In re City of Middletown (21 N. Y. Civ. Pro. 201) reversed.

(Decided February 8, 1892.)

Appeal by S. Albert Bull and Frank D. Youngblood, owners of land to be taken for street purposes in the city of Middletown, from an order made in a proceeding to open, lay out and extend such street made upon a motion of Thomas Neville, an owner of land affected by such proceeding, removing Henry M. Wiggins, one of the commissioners appointed in said proceeding.

This is a proceeding brought pursuant to the provision of the city charter of the city of Middletown (Laws of 1888, chap. 535, tit. 6, §§ 5, 6, 7) to open, lay out and extent Ogden Street in said city. Section 7 of that act provides that: "Whenever any order shall be passed by the common council directing the laying out, extending, making or widening of any street, alley, road, lane or highway in said city, they shall apply to the county court of Orange county, . . . or to a special term of the supreme court, in the second judicial district, for the appointment of three disinterested freeholders, as commissioners to estimate and assess the expense of said improvement, and the value of each parcel of the land taken for the same and the damages sustained by any person or persons by reason of such improvement, and the amount to be allowed to each person, respectively, and also to ascertain and determine what real estate will be benefited by such improvement, and to apportion and assess the entire cost of the improvement, with the expenses thereof, upon the several parcels of land benefited thereby, in proportion, as near as may be, to the benefit resulting to each."

Under this provision the common council of the city of Middletown having directed the opening, laying out and extension of said street, the county court of Orange