Williams v. Fire Ass'n
Appellate Division of the Supreme Court of the State of New York
Appeal by'the plaintiff, John R. Williams, as receiver, etc., from a judgment of the Supreme Court in favor of the defendant, entered in'the office of the clerk .of the county of Erie on the 10th day of April, 1906, upon a nonsuit directed by the court upon a trial at the Erie' Trial Term, and. also from an order entered in said clerk’s office on the 10th .day of April, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.
1ConcurrenceKruse, J.
I'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.)
2. 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…
2Cases cited2 opinions
- Hamilton v. Royal Insurance Co. of Liverpool, EnglandNew York Court of Appeals · 1898
- Bannister v. Michigan Mutual Life InsuranceAppellate Division of the Supreme Court of the State of New York · 1906