
    In the Matter of the Estate of Charles J. Bulkeley, Deceased.
    Surrogate’s Court, New York County,
    March 12, 1930.
    
      
      Wickes & Neilson, for the petitioner.
   O’Brien, S.

Claim is made in this accounting proceeding by the trustees for commissions at the rate of five per cent for collecting and paying out the amount of taxes payable under a lease entered into between the decedent as lessor and a lessee, on the theory that these taxes were in the .nature of rents for the collection of which commissions are allowable under the statute. The provision with respect to the payment of taxes in the lease is as follows: “ By way of further rental lessee will, as the same become due and payable, pay to the public officers charged with the collection thereof all taxes, assessments, and public charges which are now or may be hereafter during the term of this lease * *

Under the foregoing provision there was no duty upon the trustees to collect such taxes from the lessee and to pay them over to the proper authorities. That duty devolved upon the lessee. Section 285 of the Surrogate’s Court Act provides: Where a trustee or executor is, by the terms of the instrument, required to collect the rents and manage real property, he shall be allowed and may retain, five per centum of the rents collected therefrom, in addition to the commissions herein provided.” Neither under the terms of the will nor under the terms of the lease were the trustees required to collect these taxes, nor have any facts or circumstances been shown which might have required their collection and payment by the trustees.

Commissions thereon will, therefore, be denied. Correct decree accordingly and resubmit the same for signature.  