
    NEWBURGH STEEL CO v OCCO REALTY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided Nov 2, 1931
    Snyder, Thomsen, Ford, Seagrave & Roudebush, Cleveland, for plaintiff in error.
    T. A. Ryan, Cleveland, for defendant in error.
   LEVINE, PJ.

It seems to us unnecessary to decide this point for the reason that the major question in this case was the right of plaintiff in error, under the circumstances, to assert his counter-claim for the violation on the part of the lessor of definite covenants contained in the lease.

We are of the opinion that even though the tenant, after a partial eviction remained in possession of the premises and continued to pay the rent, that he does not thereby necessarily waive the strict observance of the covenants contained in the lease, placing definite obligations upon the lessor and in favor of the lessee. While it is true that after the plaintiff in error entered suit against the New York, Chicago & St. Louis Railroad Company, for the damages caused to it by the railroad company, a settlement was entered into between the railroad company and plaintiff in error, and that a covenant not to sue was duly executed between the parties, it is not, in our opinion, conclusive as between the lessor and the lessee.

We hold that the Municipal Court was in error when it excluded evidence in support of the counter-claim asserted by the plaintiff in error.

For this reason the judgment of the Municipal Court is ordered reversed and the cause remanded for further proceedings according to law.

WEYGANDT and VICKERY, JJ, concur.  