
    Matter of the Estate of John W. Hamersley, Deceased.
    (Surrogate’s Court, New York County,
    
    
      February, 1917.)
    Trustees — When commissions allowed to — Accounting — Code Civ. Pro., § 2753.
    While under section 2753 of the Code of Civil Procedure, as amended in 1916, commissions may be allowed to trustees upon the value of “ real property and the increment thereof received, distributed or delivered,” a decree entered in a proceeding where trustees are not accounting for real estate may not be amended so as to allow commissions on real estate held by them as part of the trust fund prior to said amendment.
    Application to modify a decree in an accounting proceeding.
    Coleridge A. Hart, for trustees.
   Fowler, S.

This is an application to modify a decree entered in an accounting proceeding by adding a paragraph allowing the trustees commissions on real estate held by them as part of the trust fund. The real estate was set apart in 1890 to constitute part of the trust fund held by the trustees. The trust has not terminated. The present accounting does not provide for a distribution of the corpus of the trust fund, nor does it purport to account for the real estate held by the trustees. Section 2753 of the Code of Civil Procedure, as amended by section 596 of the Laws of 1916, authorizes the allowance of commissions to trustees upon the value of “ any real * * * property, and the increment thereof, received, distributed or delivered.” While this amendment would doubtless authorize the allowance of commissions on real estate received by trustees subsequently to the date of the amendment, I am inclined to think that it does not authorize the allowance of commissions on real estate received by trustees prior to the date of the amendment unless such trustees are actually accounting for the real estate. In the present proceeding the trustees are not accounting for the, real estate, and the application to allow them commissions on such real estate at this time is therefore denied.

Application denied.  