In re People — 270 A.D. 940

Majority

p. 940

In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, for an Order to Take Possession of the Property of and Rehabilitate the Bond and Mortgage Guarantee Company. In the Matter of a Plan of Readjustment of the Rights of the Holders of Investments in a Mortgage Covering Premises 25 West Broadway, Long Beach, Guaranteed by Bond and Mortgage Guarantee Company. (Guarantee No. 181,464.) In the Matter of the Accounting of Brooklyn Trust Company, as Trustee under a Declaration of Trust dated July 17, 1935.— Brooklyn Trust Company, Individually and as Trustee under a Declaration of Trust dated July 17, 1935, Appellant; Frank Strianese et al., Respondents.

Order approving trustee’s account for the period July 17, 1938, to July-17, 1939, except that rental commissions paid to a managing agent to the extent of $3,472.78 áre disallowed, and surcharging the trustee with said sum, insofar as appealed from, affirmed, with $50 costs and disbursements to respondent Strianese, payable out of the trust estate. The declaration of trust, after making provision for compensation to the trustee of 5% of the gross rents, in addition to one twelfth of the income distributed to certificate holders, expressly prohibited the inclusion, as a deductible expense of operation of the trust property, of any “Payment to a managing agent * * Moreover, the trustee failed to adduce proof as to the apartments that were allegedly leased through the efforts of the managing agent. Special Term, therefore, correctly held that the record lacked evidence to show that the agent performed services outside of management that would entitle it to commissions as a broker. Lewis, P. J., Johnston, Adel, Aldrich and Nolan, JJ., concur.