The majority opinion well sets forth the agreed facts and analyzes the problem. However, in my opinion the trustee is not entitled to the annual principal commissions it seeks.
Article ninth of the trust agreement of 1941 provides as follows: “As compensation for its services in the administration of the trust the Trustee shall be entitled to receive commissions on the principal received upon the creation of the trust at the rate of one per cent (1 %) on the par value of the securities then constituting the principal of the trust. Said commission shall be paid by the Settlor on the creation of the trust. The Trustee shall be entitled to receive commissions on income at the time income is received and paid out and upon principal at the time principal is paid out, *287at the rates allowed to a sole testamentary trustee under the laws of the State of New York at the date hereof.”
The trustee obtained a receiving commission of $10,000; it also will receive an additional commission upon payment of the principal, as to which there is no controversy between the parties. The bank also has received annual commissions on income since 1941. It seeks annual principal commissions going back to 1943 based on the 1943 statute (L 1943, ch 694). At no time during the period when it was taking annual income commissions did it take principal commissions, but it now'seeks those in this accounting.
When the bank took office as trustee, it accepted the provisions of the trust agreement relating to the payment of commissions as set forth in article ninth. (Matter of Schinasi, 3 NY2d 22.) It cannot at this late date seek to enlarge upon them:
Birns, Fein and Sandler, JJ., concur with Sullivan, J.; Kupferman, J. P., dissents in an opinion.
Upon an agreed statement of stipulated facts with respect to an interpretation of a certain trust agreement, judgment is awarded to the trustee, declaring that it is entitled to annual principal commissions. The trustee shall recover $75 costs and disbursements of this controversy..