In re the Accounting of Guaranty Trust Co.

Appellate Division of the Supreme Court of New York

In re the Accounting of Guaranty Trust Co.

285 A.D. 1163, 140 N.Y.S.2d 492, 1955 N.Y. App. Div. LEXIS 7017

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 9, 1955

StatusPublished

This text of 285 A.D. 1163 (In re the Accounting of Guaranty Trust Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Accounting of Guaranty Trust Co., 285 A.D. 1163, 140 N.Y.S.2d 492, 1955 N.Y. App. Div. LEXIS 7017 (N.Y. Ct. App. 1955).

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Opinion

In a proceeding for a judicial settlement of an intermediate account of the substituted trustee under the last will and testament of the decedent, the objeetant appeals from that part of the decree settling the account, which overrules and dismisses objections to the retention or allowance of commissions of 6% of the gross rents collected under a lease of real property. Decree, insofar as appealed from, unanimously affirmed, with costs to each respondent submitting a separate brief, payable out of the estate. The lease was executed by the testator during his lifetime, for a term of ninety-nine years. It contained provisions by which the landlord was relieved of all obligations with respect to the management and control of the premises, and by which those obligations were assumed by the tenant. The landlord, nevertheless, reserved certain rights with respect to re-entry, management and control which he was entitled to exercise upon the occurrence of certain contingencies specified in the lease. The trustee succeeded to the landlord’s immunities, as between the landlord and the tenant, but no assumption of obligations by the tenant could relieve the trustee of its responsibility to the cestuis que trustent to enforce the provisions of the lease, and to protect their interests in the demised premises. The exercise of that responsibility constitutes management within the meaning and intent of subdivision 7 of section 285-a of the Surrogate’s Court Act. (Matter of Brennan, 251 N. Y. 39.) We consider the interpretation of the word “ management ” as contained in the opinion in the Brennan case {supra) controlling here, although the language of the statute under consideration on this appeal differs to some extent from that which was there construed. Appellant’s contention that the portion of that opinion which construed the statute there under consideration should be disregarded as obiter dicta may not be sustained. {Matter of Broderick v. City of New Tork, 295 N. Y. 363, 368.) On the record presented, it was correctly decided that respondent trustee is entitled to the extra commissions provided by the statute. Present — Nolan, P. J., Wenzel, MacCrate, Schmidt and Murphy, JJ.

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In a proceeding for a judicial settlement of an intermediate account of the substituted trustee under the last will and testament of the decedent, the objeetant appeals from that part of the decree settling the account, which overrules and dismisses objections to the retention or allowance of commissions of 6% of the gross rents collected under a lease of real property. Decree, insofar as appealed from, unanimously affirmed, with costs to each respondent submitting a separate brief, payable out of the estate. The lease was executed by the testator during his lifetime, for a term of ninety-nine years. It contained provisions by which the landlord was relieved of all obligations with respect to the management and control of the premises, and by which those obligations were assumed by the tenant. The landlord, nevertheless, reserved certain rights with respect to re-entry, management and control which he was entitled to exercise upon the occurrence of certain contingencies specified in the lease. The trustee succeeded to the landlord’s immunities, as between the landlord and the tenant, but no assumption of obligations by the tenant could relieve the trustee of its responsibility to the cestuis que trustent to enforce the provisions of the lease, and to protect their interests in the demised premises. The exercise of that responsibility constitutes management within the meaning and intent of subdivision 7 of section 285-a of the Surrogate’s Court Act. (Matter of Brennan, 251 N. Y. 39.) We consider the interpretation of the word “ management ” as contained in the opinion in the Brennan case {supra) controlling here, although the language of the statute under consideration on this appeal differs to some extent from that which was there construed. Appellant’s contention that the portion of that opinion which construed the statute there under consideration should be disregarded as obiter dicta may not be sustained. {Matter of Broderick v. City of New Tork, 295 N. Y. 363, 368.) On the record presented, it was correctly decided that respondent trustee is entitled to the extra commissions provided by the statute. Present — Nolan, P. J., Wenzel, MacCrate, Schmidt and Murphy, JJ.

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Bluebook (online)

285 A.D. 1163, 140 N.Y.S.2d 492, 1955 N.Y. App. Div. LEXIS 7017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-guaranty-trust-co-nyappdiv-1955.

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