¶1I dissent from so much of the opinion of my associate as holds that the claim in this action for a tort to her estate is not property that would pass to a receiver. But I am clear that a fraud on plaintiff’s rights has been effected here. Her claims for damages should not have been sold out, but have been prosecuted, and the debt paid out of any recovery. This wasj held to be the duty of a pledgee of promissory notes (Wheeler v. Newbould, 16 N. Y. 392), and justice requires the application of a similar rule in this case. It was discretionary in the court whether to grant the substitution. I think the order should be reversed, and motion denied, in order that plaintiff may have an opportunity to apply to vacate both the order directing the receiver to sell and also the sale made under the order, without costs to either party, and with leave to petitioner to renew the application in case plaintiff fails to obtain such relief.
¶2BROWN, P. J., concurs with CULLEN, J.