Bradley v. Walker. cient, alone, to put the defendant on inquiry." See, also, Maxwell v. East River Bank, 3 Bosw. 124; Perkins v. Coddington, 4 Robt. 647; Greene v. Creighton, 7 R. I. 1. The house in question, and the adjoining houses in [4] the same block, are actually set back eight feet from the line, and have remained so for many years. The large open space thus allowed in front of these houses is not usual in the city of New York, and is of itself a circumstance that might well put the purchaser on inquiry. In Tallmadge v. East River Bank, supra, the notice was not wholly by implication. There was testimony in the case that justified a finding of actual notice. Nevertheless the case is authority in support of the doctrine for which we here contend. But in the case at bar the fact of the notice does not rest upon an implication from circumstances above set forth. [5] The covenant agreement under consideration here was regularly recorded, and this, in and by itself, was notice. This court, in Kendall v. Niebuhr, 45 Super. Ct. 542 (FREEDMAN, J., writing the opinion), affirmed at general term (46 Super. Ct. 544), held that "a mortgagee employing an attorney to make searches, prepare releases, etc., is chargeable with knowledge of a recorded conveyance, though the fact was not communicated to him by the attorney. The presumption is that the attorney found the record in discharge of his professional duty, and the presumption becomes conclusive by the attorney's omission to testify to the contrary when called as a witness." In the case at bar the defendant's attorney was present and conducted the trial, but remained mute on this point. Notice to an attorney in the investigation of a title is notice to his client. See Griffith v. Griffith, 9 Paige, 315; Weeks, Attys p. 407, § 237. Purchasers must be deemed to know every fact disclosed by the instruments of record affecting the property purchased; and the fact of such purchasers not having actual notice will [6] [7] Bradley v. Walker. not relieve them from obligations imposed by said instruments. A purchaser must be presumed to ex amine every recorded deed, or instrument form[8] ing a part of it. See Acer v. Westcott, 46 N. Y. 384; McPherson v. Rollins, 107 Id. 322. If it is held that the agreement was not properly recorded as to defendant's grantor, Mrs. Alvord, on account of her defective acknowledgment, inasmuch as it [9] was properly recorded as to the other parties to the agreement, the defendant could not in law see a part without the whole, and he would thereby have actual notice through his attorney who searched the title. See 2 Pom. Eq. Jur. pp. 16, 17, 92. With regard to the granting of an extra allowance of $250, we think the court below fell into error. [10] Sub division 2 of section 3253 of the Code provides that an extra allowance may be given "in any other case" (other than an action to foreclose a mortgage) "specified in this section, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved." In the case at bar there is no evidence of the value of the subjectmatter involved, and no sum recovered beyond the costs and extra allowance, while the amount claimed as damages is $1000, 5 per centum of which would be less than the $250 granted as extra allowance by the court below. Thus, in any view of the case, the granting of the extra allowance of $250 was improper. Where the subject-matter involved is not capable of a money value, or the value is not shown, an allowance is not au[11] thorized. See Conaughty v. Saratoga Co. Bank, 92 N. Y. 401; People v. Railroad Co., 5 Lans. 25; Coates v. Goddard, 34 Super. Ct. 118; Munro v. Smith, 17 N. Y. Civ. Pro. 158. This error, however, is one that can be remedied without reversing the judgment, which in all other respects is fully warranted. We are of the opinion that the judgment must be Dr. Jaeger's Sanitary Woolen System Co. v. Le Boutillier. modified by deducting therefrom the sum of $250, and as thus modified the judgment appealed from is affirmed, with costs. FREEDMAN, J., concurred. DR. JAEGER'S SANITARY WOOLEN SYSTEM CO., APPELLANT, v. LE BOUTILLIER, RESPONDENT. SAME, APPELLANT, v. LOESER et al., RESPONDENT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; FEBRUARY, 1892. $ 3253. Additional allowance-when cannot be granted where trade-mark subject of action. In an action to enjoin alleged infringements of a trade-mark, and to recover damages arising from profits made by the defendants out of the alleged infringement, where it was determined that a trade-mark did not exist, the defendant cannot be granted an extra allowance; the real contest is as to the trade-mark right, and it having been determined that no such right existed, there was no question in the case as to damages and no basis upon which an allowance could be granted. Weaver v. Ely (83 N. Y. 89); Conaughty v. Saratoga County Bank (92 N. Y. 401); Adams v. Arkenburgh (106 N. Y. 615) followed; Monroe v. Smith (17 N. Y. Civ. Pro. 158) distinguished. (Decided February 18, 1892.) Appeal by the plaintiffs in two actions entitled as above, from orders appointing a referee to take testimony as to the value of trade-mark for use upon a motion for an additional allowance in actions to restrain infringements of said trade-mark wherein the complaints had been dismissed. Dr. Jaeger's Sanitary Woolen System Co. v. Le Boutillier. The facts appear in the opinions. Samuel B. Clark (Root & Clark, and J. Van Sant voord, attorneys), for plaintiffs, appellants. R. S. Maynard (Grepel & Raegener, attorneys), for defendants, respondents. PATTERSON, J.-These are appeals from orders in two actions brought for infringement of an alleged trademark right claimed by the plaintiff. Judgment in each action was for the defendant. In the case against Le Boutillier a temporary injunction was granted. The defendant in each case moved for an extra allowance, and the court below directed a reference in each case, to take proof of the value of the plaintiff's alleged trade- . mark, with a view to granting such additional allowance; and, in connection with the order in the Le Boutillier case, the referee was authorized to ascertain the damages caused by the injunction. No objection is made to that part of the order last referred to, and the only question requiring consideration is as to the ordering of the reference in aid of the motions for an extra allowance, and that, of course, depends upon the power of the court to grant such an allowance in cases of this character. We are of the opinion that such power does not exist. The whole subject is regulated by statute. Section 3253 of the Code of Civil Procedure confers the only authority the court has concerning it, and it is expressly stated there that in all cases not otherwise provided for an extra allowance may in the discretion of the court be granted upon a "sum recovered or claimed, or the value of the subject-matter involved." There was no sum claimed by the plaintiff, except as incidental damages, arising from alleged profits made by the defendants out of the infringement of the trade-mark claimed, but the Dr. Jaeger's Sanitary Woolen System Co. v. Le Boutillier. real contest was as to the trade-mark right, and, it having been determined that no such right existed, there was no question in the case at all as to damages. They could only have resulted from an accounting after a determination that the plaintiff was entitled to judgment on the real issue, and Weaver v. Ely (83 N. Y. 89) is quite in point. That was an action for an accounting, and for the payment of any amount found due on such accounting. The complaint was dismissed on findings which showed the defendants were not liable to account. Extra allowances were awarded them, but the court of appeals held in reversing the orders, in substance, that where undefined and unascertained interests, dependent wholly on the result of previous inquiry, are in question, and the main relief is denied, there is nothing upon which an allowance may be based. Conaughty v. Saratoga Co. Bank, (92 N. Y. 401), defines also what is meant by the word "involved," in the section of the Code above alluded to. It means the possession, ownership, or title to the property or other valuable thing which is to be determined by the result of the action. That, in these cases, was the trade-mark, and nothing else. There are several cases on this subject more recent than those cited by counsel, and among them is Adams v. Arkenburgh (106 N. Y. 615), and in that case a distinction is made between it and Weaver v. Ely, supra. The opinion in each of those cases was written by the same judge (DANFORTH), but it was held in the later case that there was a specific value to be fixed upon the result of an accounting, under the peculiar facts of the case,it was for a copartnership accounting,-and that the matter should not have been disposed of as a question of law. Here the subject comes up distinctly as a question of law, and our decision is put upon the plain ground that in such a case as this an extra allowance cannot be granted to a defendant, on the dismissal of a complaint |