¶1(concurring):
¶2I'agree with the presiding justice that it was necessary for the, defendant to raise by answer the. objection that the action was not commenced within the time limited by the terms of th,e policy, as was done by the defendant.' (Code Civ. Proc.' § 413 ; Hamilton v. Royal Ins. Co. 156 N. Y. 327; Bannister v. Michigan Mutual, Life Ins. Co., 111 App. Div. 765.)
¶32. While ordinarily the defendant , insurance company could not avail itself of the defense that the arbitration was'.pending at the time of the commencement of the action without pleading that defense affirmatively, yet if the plaintiff for the purpose of avoiding the effect of the failure upon his part to commence the action within twelve months after the fire, as provided by the policy, proved in rebuttal the pendency of the arbitration proceedings without showing that they had been abandoned or terminated, I think the insur-' anee company could avail itself of that fact without specially pleading it, just as a. defendant can avail himself of a payment proven by the-plaintiff for the purpose of recovering upon a debt which otherwise would be barred by the Statute of Limitations.
¶4I think the trial judge would have been right in nonsuiting *584regardless of the pleadings, had the facts proven by the plaintiff ' warranted the conclusion, as a matter of law, that the arbitration \ • . ‘ proceedings were pending at the time of the commencement of the action, but I do not take the view that the evidence conclusively established the pendency of the arbitration proceedings, and I, therefore, concur in reversing the judgment and granting a new trial.
¶5Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.