
    ROBERT ROGERS, Individually and as Administrator, etc., of the Goods etc., Which Were of GEORGE DOUGLAS ROGERS, Deceased, Resp’t, v. THE NEW YORK LIFE INSURANCE AND TRUST COMPANY in its Own Behalf (and Also as General Guardian of the Estate of MARIE B. WILLIAMS), App’lt.
    Trustee—Responsibility—When not increased.
    Appeal from the final judgment of the Orange county special term confirming the report of the referee.
    Robert Rogers, on behalf of George D. Rogers, a person of unsound mind, acting as trustee for George D. Rogers, deposited large sums of money with the defendant. George D. Rogers died, and the surrogate made an order directing that the funds of George D. Rogers remain in the custody of the company subject to the order of the surrogate. Robert Rogers was appointed administrator. An action was brought for an accounting. The trust company claimed that this order of the surrogate gave it the right to commissions in excess of those which they had expressly agreed to charge.
    
      Emmet & Bobinson, for app’lt; George L. Glark, for resp’t.
   Pratt, J.

—The court at special tenn is correct in holding that no increased responsibility devolved upon the trust company by the surrogate’s order that the fund should remain in its custody. The order merely ratified and perpetuated a situation already created by agreement of the parties, and affords no reason for increasing the compensation of the depositaries. If their agreed compensation was adequate during the life-time of George D.. Rogers, no reason is perceived why it should be inadequate after the appointment of his administrator.

The source of the trusteeship was changed, but the trustee was the same, and vie think the estate should have the advantage of the contract made while he was acting under his original authority.

The judgment must be affirmed, with costs. ■

Dykman, J., concurs; Barnard, P. J., not sitting.  