Ordered that the order is affirmed, without costs or disbursements.
No commissions are payable on real property unless the fiduciary sells the property (Matter of Schaich, 55 A.D.2d 914; SCPA 2307; Lipman, 1967 Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA 2307, p 363). The sale of the real property by the appellant was not done in his capacity of executor. Rather, he sold it to a named individual at a fixed price pursuant to the instruction and direction of the respondent residuary legatee. Such transfer by executor's deed rather than by deed of the respondent was a mere incident of the conveyance. The transaction should be treated as if the real property passed to the respondent by operation of law and the appellant fiduciary never received the asset. Hence, the sale was not commissionable.
Finally, the Surrogate did not act improperly in reducing the counsel fee from $1,500 to $1,200. Mangano, J.P., Brown, Rubin and Eiber, JJ., concur.