I am not disposed to assent to the affirmance of this judgment, as the testimony upon which it rests is too doubtful to be relied upon. The action is for rent of a house for July, August and September, 1905. The defendant first became, a tenant under a written lease for three years from October 1, 1899. That lease was renewed by an interchange of letters from October 1, 1902, to October 1, 1903. No second written renewal was had, but defendant continued to occupy the house after October- 1, 1903, thus becoming a hold-over tenant for a year, or until October 1, 1904. After that date he continued to occupy the house and, consequently, became again a hold-over tenant for a year, un-. less his term was shortened by the agreement he relies upon. The defendant’s testimony is that, on June 1, 1903, he wrote to plaintiff that he would like to keep the house until May or June, 1905, and then surrender it. No written reply to this proposition was made hy plaintiff. Defendant relies upon a verbal acquiescence, concerning which his testimony is not very convincing, and which plaintiff absolutely denies. That she ever acquiesced seems to be inherently improbable, as no reason suggests itself why she should agree, two years ahead, to have her house left tenantless at a time when it was practically certain that she would lose three months’ rent. The agreement, if made as defendant testifies, was undoubtedly void under the Statute of Frauds; but the plaintiff, for some reason, did not take that objection below. Passing that *308point, however, I think that such an improbable agreement as defendant relies upon should not be sustained, except upon proof much 'stronger and more convincing than was presented in this case.
The judgment should be reversed and a new trial granted with costs to appellant to abide the-event.
Tbuax, J., concurs.