Opinion
October 18, 1960
Judgments appealed from unanimously modified, on the law and on the facts, so as to delete therefrom the item for damages and, as so modified, the judgments are affirmed, without costs to either party. These are separate appeals by eight defendants from separate judgments entered after trial. Since all involve the same questions, they are, for convenience, treated together. The judgments permanently enjoined the defendants from advertising and offering for sale certain commodities manufactured by the plaintiff and bearing its trade-mark. Judgment was entered against each defendant in the sum of $1,142.43, which sum included $500 counsel fee and a proportionate share of the sum of $5,139.47 damages allowed jointly against all defendants. It is clear from the record that the item of $5,139.47 was not incurred in any effort to minimize damages allegedly suffered by the plaintiff as a result of defendants' conduct. Nor are counsel fees properly allowable here ( Dunkel v. McDonald, 272 App. Div. 267, 272, affd. 298 N.Y. 586; General Business Law, §§ 369-a, 369-b, 369-c). Settle order on notice.
Concur — Botein, P.J., McNally, Stevens, Eager and Bastow, JJ. [ 19 Misc.2d 546.]