Kean v. 34 West 34th Street Corp.

Plaintiffs, as landlord, sue to recover additional percentage rent claimed to be due under a lease dated February 1, 1939. The corporate defendant has interposed a counterclaim for water damage to its property allegedly resulting from plaintiffs’ negligence in the maintenance and operation of the demised premises. In reply to the counterclaim, plaintiffs assert two affirmative defenses: (1) That the lease exonerated plaintiffs from any liability to defendants for water damage; and (2) that, defendants were insured against water damage *915and have received payment from the insurer, that thus the…