Majority
p. 730Ethel Kotkin, Appellant, v. Frederic W. Allen and Others, Defendants, and Emma Obermayer, as Executrix, etc., of William Obermayer, Deceased, Respondent.
Order and judgment reversed on the law and the facts, with ten dollars costs and disbursements, and defendant William Obermayer’s motion to dismiss the complaint denied, with ten dollars costs. In ou-r opinion, the complaint states a personal and not a derivative cause of action for damages arising out of the defendants’ alleged fraudulent representations respecting the character of the bond and mortgage assigned to plaintiff by the New York Title and Mortgage Company. Such an action is not enjoined by the order appointing the rehabilitator. Lazansky, P. J., Young, Carswell, Tompkins and Johnston, JJ., concur.