A statement of the facté is contained in the opinion of the presiding justice.: .
The policy of insurance contains this provision: “ Yo suit or action on this ..policy for the recovery of any; claim shall .be sus: tamable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within ' twelve months next after the fire.” By this clause in their contract the parties made compliance with the requirements in the ■ policy and the commencement .of the action within; twelve months after the fire conditions precedent to the maintenance of the action. (Clemens v. American Fire Ins. Co., 70 App. Div. 435; Ketchum v. Belding, 58 id. 295; Meres v. Emmons, 103 id. 381, 384; Reining v. City of Buffalo, 102 N. Y. 308; 4 Ency. Pl. & Pr. 641; 2 May Ins. [4th ed.] 1373.)
And their performance must be alleged'in the complaint. (Oases cited; Thrall v. Cuba Village, 88 App. Div. 410; Rosenstock v. City of N. Y., 97 id. 337; Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328, 334.)
■ In Clemens v. American Fire Ins. Co. (supra),- in construing the provision in the insurance contract providing that-sixty days must elapse after proofs of loss have been furnished before an action on the policy can be commenced, this court held unanimously that such requiremen t was ,a. condition precedent to sustain, the action and must be alleged in the complaint.
May in his work on Insurance (Yol. 2 [4th ed.], p.. 1373, n. 4) states the rule as' follows:' “.The petition must always aver the lapse of the time necessary before action can be brought —the sixty days after proof, or other time allowed'for payment.”
The Encyclopaedia - of Pleading and Practice (Yol. 4,-p. 641) contains the following': “ So. in an action .upon an, insurance policy providing that a loss shall not be payable until a certain time after notice and. proof of the same, the complaint must show" that the action was not commenced until the. lapse of the. specified time after the notice and proofs were- furnished,” citing ■ many authorities' in support of the proposition.
Unquestionably the plea of the Statute. of Limitations and the Statute of Frauds is ordinarily a defense. The parties to a contract, *575however, may prescribe that the performance 'of any requirement is a prerequisite to a recovery, and, in that event, due performance must be alleged in the complaint or adequate excuse for failure be averred. The time when an action is to be brought may as well be regulated by the parties as any other condition contained in. their agreement. (Code Civ. Proc. § 414, subd. 1.)
In order to obviate the necessity of alleging in detail the facts constituting performance of the conditions precedent embodied in the contract, the pleader is permitted by section 533 of the Code of Civil Procedure to state that he has “ duly performed ” these requirements ; but “ if that allegation is controverted, he must, on the trial, establish performance.”
The complaint in the present action contained this Code allega- • tion, and the answer set out a general denial and alleged affirmatively that the action was not commenced within the time stipulated in the contract. On the trial the plaintiff did' not attempt to show that the action was commenced within one- year after the fire. Concededly, it was not commenced within that time. He proved facts under the objection of the defendant tending to excuse his failure ■ for commencing the action within the prescribed period. He must establish that he “duly performed” all the conditions imposed upon him conformably to the allegation in his complaint. He did not meet this burden by showing waiver of performance. (Beecher v. Schuback, 1 App. Div. 359; affd. on opinion below, 158 N. Y. 687; Burr v. Union Surety & Guaranty Co., 86 App. Div. 545 ; Brandt v. City of N. Y., 110 id. 396, 399; Stern v. McKee, 70 id. 142,146; Ryer v. Prudential Ins. Co., 85 id. 7.)
If the plaintiff expected to show a waiver of performance by the insured he must plead it. (Elting v. Dayton, 43 N. Y. St. Repr. 363; Fox v. Davidson, 36 App. Div. 159; Allen v. Dutchess County Mut. Ins. Co., 95 id. 86; Todd v. Union Casualty & Surety Co., 70 id. 52.)
He could not allege due performance with the provisions of the policy, and, when this is denied, change front on the trial, conceding his averment is untrue and establish facts excusing the performance. If the plaintiff relies upon a waiver he should apprise the defend- ' ant in his -complaint of his position. (Porter v. Kingsbury, 5 Hun, 597; affd., 71 N. Y. 588.)
*576■ It is urged that the plaintiff could not anticipate that the defendant would insist upon the Statute of Limitations, and, consequently, he was not obliged to allege any excuse for full performance'. That might be stated with equal propriety as to any other requirement in the insurance contract which is made a condition precedent, for the defendant assuredly may waive any of these provisions: If, however, they are preliminaries' essential to the maintenance of the action, the plaintiff mtist in his complaint either allege due performance, or facts excusing it, and the time limitation' in the policy is within this rule of pleading as well as any other condition.
"The defendant did not set up the pendency of the arbitration proceeding as a defense. . Tt preferred to stand on the.issue of performance. The defendant was not required to interpose the other defense when it was satisfied that no recovery could be had on the pleadings as they were framed..
The trial judge received the evidence of waiver and granted the motion for nonsuit on the ground that the arbitration agreement was still effective. That issue was certainly not raised-by the pleadings. ■ The evidence, in my judgment, was sufficient to permit the jury to find , that the arbitration proceedings had been abandoned. Had the court excluded the evidence of .the waiver,, an amendment .to the complaint might have been allowed,; and the case eventually been disposed of on the merits:
I am, therefore, in favor of a reversal, so that the issues may be properly set forth in the pleadings and a trial had on the substantial issues.
Williams and Robson, JJ., concurred.