
    Julia Manley Weeks L’Ecluse, Respondent, v. Frank M. Belden, Appellant.
   The uncorroborated version of the plaintiff is that when tfie defendant went in February to complain of the unendurable cold in the plaintiff’s dwelling house then leased to defendant, the defendant agreed to renew the lease, or make a lease for a new term beginning the ensuing May provided the plaintiff would install a new heater forthwith. The defendant denies that he ever made such an agreement. There was no need that he should make it, for the existing lease required the plaintiff to furnish apparatus to afford a certain degree of beat, and the testimony of plaintiff’s witness Fogel shows that a new heater was needed. On the other hand, there is proof that defendant under his physician’s advice had once moved out of the house as unlivable, and had only returned after the new heater had been placed in it. Such outgoing on the part of the tenant, if justified, would have deprived the landlord of rent for the existing term. The relative acts of the parties subsequent to February are more consistent' with the nonexistence of any agreement for a renewal or of a revival than with the existence thereof. We think that the plaintiff did not uphold the burden of proof, and, therefore, we grant a new trial. Judgment and order reversed, and new trial granted, costs to abide the event. Jenks, P. J., Rich and Jaycox, JJ., concurred; Thomas and Blackmar, JJ., voted to affirm.  