
    The Newburgh Steel Co. v. The Occo Realty Co.
    (Decided November 2, 1931.)
    
      
      Messrs. Snyder, Thomsen, Ford, Seagrave é Boudebush, for plaintiff in error.
    
      Mr. T. A. Byan, for defendant in error.
   Levine, P. J.

The parties appear in this court in an order the reverse of that held in the court below. The Occo Realty Company, lessor, entered suit in the municipal court against the Newburgh Steel Company, lessee, for five months rent at the rate of $400 per month, and recovered judgment against it. To the statement of claim filed by the Occo Realty Company, the Newburgh Steel Company, lessee, filed a counterclaim, alleging, amongst other things, that, whereas, under the lease between the parties the lessor covenanted and agreed that the lessee should at all times during the term of the lease have the peaceful and quiet enjoyment of the premises without any manner of let or hindrance from lessor, or any person or persons lawfully claiming said premises, and whereas lessor specifically granted to the defendant lessee ingress and egress to the leased premises, lessee, by reason of the wrongful act of the Occo Realty Company, which unlawfully caused and permitted a certain-railroad siding to be entirely removed from the premises so that the same has not been available to plaintiff since the month of June, 1929, and which also caused and permitted the driveway along the side of the building to be destroyed and obstructed in such a manner that it likewise became unavailable, has suffered damage in the sum of $50,000.

The trial court in effect refused to permit evidence supporting the counterclaim filed by plaintiff in error, lessee. Much discussion is devoted in the briefs and argument to the question of the effect of a partial eviction by lessor. Plaintiff in error contends and cites many authorities to the effect that, if a tenant is partially evicted, lie may remain in possession during the remainder of his term, and that the law will not aid the landlord in collecting the rent reserved where a partial eviction has taken place, because neither party to the lease can apportion the rent.

Defendant in error contends that, in order to escape the obligation to pay rent, the tenant must within a reasonable time abandon the premises, otherwise he waives his right to abandon the premises.

It seems to us unnecessary to decide this point, for the reason that the major question in this case is the right of plaintiff in error under the circumstances to assert his counterclaim 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, he did not thereby necessarily waive the strict observance of the covenants contained in the lease, placing definite obligations upon the lessor in favor of the lessee. While it is true that, after the Newburgh Steel Company, 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, such 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 counterclaim asserted by the plaintiff in error.

For this reason, the judgment of the municipal court is ordered reversed, and the cause is remanded for further proceedings according to law:

Judgment reversed and cause remanded.

Weygandt and Vickery, JJ., concur.  