
    Elsie Hildebrand, Executrix, etc., of James G. Hildebrand, Deceased, Respondent, v. Franklin-Wright Co., Inc., Appellant.
   Defendant has appealed from a judgment of the County Court of Schenectady county affirming a judgment of the City Court of the City of Schenectady in plaintiff’s favor. Subsequent to the entry of judgment herein plaintiff died, and his executrix has been substituted as a party. The action is based upon false representations. The complaint charges in substance that on November 11, 1927, defendant contracted to sell the original plaintiff a Chrysler automobile which plaintiff purchased and which defendant represented to be a 1928 model and which the complaint alleges was in fact a 1927 model. The undisputed proof is that defendant’s agent stated to plaintiff at the time of the purchase of the ear that such car “ was the last word in Chryslers.” The proof also discloses that the automobile in question was manufactured by the Chrysler Motor Company on September 29, 1927, shipped out of the factory October 27, 1927, and was received by defendant on November 6, 1927. It was a new car and at the time of its sale to the original plaintiff it was the latest car available which the Chrysler corporation manufactured. The proof also discloses that the car was a 1928 series and that there was no change made in such ear until January, 1928, when internal expansion brakes were added to the new models. There is no evidence whatever in the record to substantiate the claim that defendant represented that the car in question was a 1928 model. There is no proof whatever to establish fraud or misrepresentation on the part of the defendant in connection with the sale of the automobile. Judgments of the County Court and City Court reversed on the law and facts, and complaint dismissed, with costs in all courts. Hill,' P. J., Rhodes, McNamee, Crapser and Heffeman, JJ., concur.  