The action w’as brought to perpetually enjoin the defendant from in any way using the plaintiffs’ trade mark, “ Filo Floss,” and, incidentally, to recover damages for infringing the same. Upon the trial the plaintiffs’ contention was sustained and a decision was signed and an interlocutory judgment entered which enjoined the defendant from using the trade mark, and referred the question of damages to a referee to take proof. The interlocutory judgment further ¡irovided : “ That upon the incoming and confirmation of the said referee’s report, a final judgment shall be entered against the defendant for such amount of money as it may be found that the said plaintiffs are entitled to recover against the said defendant, besides the costs and disbursements of this action, together with an allowance in addition to costs, the amount thereof to be fixed by the Court on the entry of final judgment.” ■
After the entry of the interlocutory judgment the plaintiffs decided not to go to a reference on the question of damages and to waive all claims thereto, but moved before the same justice who tried the case at Special Term for an extra allowance upon affidavits tending to show the value of their trade mark rights. This motion wras denied, and from the order denying the same the plaintiffs appeal.
The question herein argued, as to whether an allowance in cases of this character should be based upon the value of the trade mark or the amount of damages awarded for the infringement, is purely academic in the case at bar, for two reasons : First. The trial justice did not determine whether it should be based upon the damages sustained or the value of the trade mark; and, seconcll/y, because he refused to grant any allowance. It is insisted, however, that the em ' of the interlocutory judgment, which, upon certain conditions, awarcn. in extra allowance, exhausted the judge’s power and dis*149cretion, and that all thereafter remaining for him to do was to fix the amount. The -provision was that, upon the incoming of the referee’s report, the plaintiffs, in addition to costs, were to have an allowance, “ the amount thereof to be fixed by the Court.” This language of the interlocutory judgment does not justify the construction put upon it that the court awarded an allowance absolutely and without conditions; but rather it is susceptible of the construction that it was for the labor, among other things, which plaintiffs might have before the referee in proving damages that the provision was inserted in regard to an extra allowance. The one best able to construe the interlocutory judgment was the justice who ordered it. When the plaintiffs elected not to proceed with the reference, it was competent for the court, as the conditions upon which the provision was made would not arise, to refuse in its discretion to grant any allowance. In other words, the trial justice had fixed the time when and the conditions upon which he would determine what allowance would be included in the final judgment. The right to determine its amount he properly reserved to himself, since it is doubtful if any other judge or court in an equity case may exercise the power. When the question was finally presented to him for determination, therefore, he had the right and power to grant or refuse the extra allowance. He retained the right to determine what amount he would ultimately grant and upon the election of the plaintiffs not to proceed with the reference, could refuse to give any allowance.
We do not think we would be justified in interfering with the discretion thus exercised, and for that reason the order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Rumset, Patterson and Hatch, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.