In re the Accounting of McLaughlin

272 A.D.2d 796

Opinion

We believe that it was within the power of the Surrogate’s Court to allow management commissions to appellant. In view of the circumstances and limited grounds of appellant’s removal as trustee, as affirmed by this court (260 App. Div. 43, 45), and the Surrogate’s allowance of management commissions to appellant on her- intermediate accounting, it would be proper to grant such allowance on her final account. The decree should be modified by allowing management commissions to appellant in the amount of $5,664.17, being the amount of commissions earned during the years 1936 and 1937. There being no income for the year 1938, the appellant may not collect commissions for that year and may not credit a claim to commissions for that year against surcharges for previous years. As so modified, the decree, so far as appealed from, is affirmed, with costs to • the appellant payable out of the estate. Present — Martin, P. J., Grlennon, Dore, Cohn and Peek, JJ.; Martin, P. J., and Dore, J., dissent and vote to affirm the decree, so far as appealed from, solely on the ground that the Surrogate did not abuse his discretion in denying commissions because of the prior removal of the trustee. (See Matter of McLaughlin, 260 App. Div. 43, 45, affd. 285 N. Y. 604.) Setttle order on notice.