I concur in the prevailing opinion.
There is much force in the argument presented in Judge LOUGHRAN'S opinion and the view taken of this matter of commissions by the Surrogate in Matter of Byrnes (159 Misc Rep. 302). It is somewhat difficult at times to draw the line between the management of a large apartment house, including the moneys expended for maintenance, upkeep and repairs, and the running of a business. However, the distinction seems to have been drawn, without much discussion, it is true, and the allowance of commissions on the basis stated in the opinion by Judge LEHMAN has at least found recognition by this court inMatter of Wendel (273 N.Y. 532). Not until recent years has this question of figuring commission on the maintenance and upkeep of large real estate properties been challenged, or the meaning of section 285 of the Surrogate's Court Act doubted in its application to such a situation.
In view of what has now been said on both sides and the arguments now pressed forward, I am inclined to adhere to the practice as it has been, leaving it to the lawmakers to express more clearly their intent if our decision be not in harmony with it.