Coates v. Coates, 1 Duer 664

Coates v. Coates. (At General Term, before Oaklet, On, J., Duer, Campbell, and Bosworth, J. J.) January 22, 1853. Counsel fees for defending the suit, and moving to dissolve an injunction, may be properly included in an estimate of the damages sustained by the defendant, in consequence of the injunction. 'The plaintiff, upon the usual undertaking, had obtained an injunction restraining the defendant from the use of certain trade marks.

This injunction was dissolved upon the motion of the defendant, founded upon his answer, and a large number of affidavits; and the merits of the controversy being thus virtually determined, the plaintiff discontinued the suit.

The usual reference was then had for ascertaining the damages sustained by the defendant, in consequence of the injunction, and it appeared from the report of the referee, that the damages, as estimated by him, consisted mainly of heavy expenses incurred, and counsel fees paid by the defendant in procuring the dissolution of the injunction; none of the charges, however, were such as could be included in the taxation of costs, and the court, after argument, were of opinion that they were properly allowed, and therefore denied a motion for striking them out from the report. (Code, 11, Paige, p. 227). C.

Edwards, for plaintiff. A. Burrill, for defendant.