
    FREDERICK APPLEGATE, PLAINTIFF-APPELLANT, v. JANET WOJACZYK, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 4, 1968
    Decided November 13, 1968.
    Before Judges Goldmans, Kolovsky and Cabton.
    
      Mr. Frederick Applegate, appellant, argued the cause pro se.
    
    
      Mr. Robert O. Rafano argued the cause for respondent.
   Per Curiam.

Plaintiff sued for the balance of rent due under a one-year lease. The defense was constructive eviction. Judgment went in defendant’s favor; the trial judge held that the case was a close one, plaintiff had the burden of proof, and he had not sustained it.

Plaintiff’s motion for a new trial was denied. His further motion to amend the statement in lieu of record settled by the trial judge (R. R. 1:6-3) was also denied.

The trial judge misplaced the burden of proof. Where constructive eviction is raised as a defense to an action for rent, the burden is upon defendant to prove such eviction. Alexandria Realty Co. v. Whitman, 8 N. J. Misc. 21, 148 A. 12 (Sup. Ct. 1929); cf. Gunther v. Oliver, 97 N. J. L. 376 (Sup. Ct. 1922). The matter must therefore be remanded for a reevaluation of the proofs in the light of that rule.

Reversed and remanded for new findings, to be filed within three weeks. We retain jurisdiction.  