
    Clarence R. Conger, as Trustee under the Last Will and Testament of Catharine Ann Hedges, Deceased, Respondent, v. Theodore H. Conger and Others, Appellants, Impleaded with Arthur B. Conger and Herbert T. Conger.
    
      Commissions of a trustee — they may he computed annually, if annual rests are made — the trustee must establish the fact that annual rests were made — if the income be all paid over the commissions are waived.
    
    
      Semble, that a trustee appointed to hold real property in trust and to pay annually or oftenor in his discretion the income thereof to the cestui que trust for life, is entitled, if he makes annual settlements with the cestui que trust, to compute his commissions on each annual rest separately at the statutory rates.
    This, however, is an exception to the general rule that commissions of a trustee are not earned until an accounting is had and an allowance thereof made. It is, therefore, incumbent upon a trustee claiming the benefit of such exception to bring himself within it.
    If, at an annual settlement, the trustee pays over to the cestui que trust all of the income of the trust property, he waives his right to commissions for the year in reference to which the settlement is had.
    Reargument of an appeal by the defendants, Theodore H. Conger and others, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day. of November, 1902, upon the report of a referee.
    
      Joseph E. Bullen, for the appellants.
    
      Albert F. Hagar, for the respondent.
   Patterson, J.:

This is a reargument ordered by the court of a single subject involved in the appeal in this action, namely, the amount of commissions to which the trustee is entitled. The referee allowed the trustee $567.99. We were of opinion that the proof showed that all the income had been paid over to the cestui que trust, and that thereby the trustee waived his right to commissions (Spencer v. Spencer, 38 App. Div. 403), and that commissions were allowed for the improvement of real property, but such was not the fact.

As stated in the opinion then rendered,* the will provided that the trustee should hold certain realty in trust “ to receive the net rents, issues, profits and income thereof, and to pay over the same annually or oftener in his discretion, to my nephew, Theodore H. Conger,” for life. It appears from the áccount of the trustee herein that during the first two years he paid over to his cestui que trust more than the income of the property. Thereafter he retained enough to cover the commissions which he now claims. The deficit of the first two years was not made up by money retained, however, until the fourth year, from which time enough was held back to coverall commissions claimed. The amount of commissions is fixed by sections 2802 and 2730 of the Code of Civil Procedure at five peícent on the first $1,000 received and paid out; two and one-half per cent on the next $10,000, and one per cent on any amount above $11,000. .

The trustee claims that lie made annual settlements with the cestui que trust and is entitled to compute his commissions on each annual rest separately at the above rates, and cites Hancox v. Meeker (95 N. Y. 528) and Matter of Accounting of Mason (98 id. 527) in support of liis claim. The rule is that commissions are not earned until an accounting is had and an allowance thereof made. The above cases establish an exception to the rule and it is incumbent upon the trustee to bring himself within it. The cestui que trust claims that there were no annual settlements or rests. It is obvious that if there were annual settlements or rests the trustee waived his right to commissions during the first three years. (Spencer v. Spencer, supra.) The complaint alleged, however, that no accounting had been made and asked for a judicial settlement. The action proceeded on that theory. The account as presented and settled shows no annual settlement. The money was paid to the cestui que 1/rust at irregular intervals. The commissions are not credited annually from the testator’s death; nor from the issuance of letters; nor even from the end of an assumed fiscal year. They are credited as of October 31, for the years 1892, 1893 and 1894. The next credit of commissions is February 29, 1896. Thereafter they are credited as of January 31,1897,1898,1899,1900 and 1901.

From the trustee’s testimony it appears that a transcript of his book entiles was rendered to the cestui que trust whenever asked for — “ nearly every year.” But no balance appears to have been struck and neither party appears -to have regarded these statements as final or as an annual settlement or rest. Had such a claim been made a judicial settlement might have been demanded long ago.

It follows, therefore, that the trustee is entitled to commissions, not upon annual rests as claimed, but on the total amount received and paid out, and the judgment should be modified accordingly, and as so modified affirmed, without costs.

O’Brien, Ingraham, McLaughlin and Laughlin, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs. 
      
       This opinion was withheld from publication, by direction of the court, pending a motion for reargument. (See 99 App. Div. 625.) — [Rep.
     