
    Roger A. Fortuna, as Trustee in Bankruptcy for Earl A. Smith and Another, Bankrupts, Respondent, v. Le Roy Conkling, Doing Business as Conkling Realty Agency, Appellant, et al., Defendants.
   Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The trial court’s charge as to the proper measure of damages in a fraud action was erroneous, insofar as it allowed the jury to award damages on the basis of what the property would have been worth if as represented. The correct measure of damages was stated elsewhere in the charge as being the difference between what the plaintiffs paid for the property and the value of the property received by the plaintiffs but it is impossible to determine which part of the charge the jury chose to follow. Furthermore, the proof of damages was deficient in that there was no evidence as to the value of the personalty received by the plaintiffs, the proof being limited to the value of the real property. Also, we believe that the finding of fraud, as to the alleged representation with respect to the availability of school bus transportation, which was one of the representations submitted to the jury, was against the weight of the evidence. All concur. (Appeal from a judgment of Herkimer County Court for plaintiffs and against defendant Conkling in an action to recover damages alleged to have been sustained as the result of fraud and misrepresentation.)

Present — McCurn, P. J., Williams, Bastow, Goldman and Halpern, JJ.  