The evidence does not justify the conviction of defendant for failure to supply heat on the premises, but does justify the conviction for failure to supply hot water, and for that reason the fine of $500 is reduced to $100, and as so modified the judgment of conviction is affirmed.* Kelly, P. J., Rich, Kelby and Young, JJ., concur; Kapper, J., dissents, and votes to reverse the conviction and to discharge the defendant, on the ground that the conviction was based by the Court of Special Sessions solely upon the landlord’s failure to furnish heat, and that his alleged failure to furnish hot water was not in any wise made the basis of the finding of guilt.
See Penal Law, § 2040, added by Laws of 1920, chap. 131, as amd. by Laws of 1920, chap. 951.— [Rep.