The opinion of the court was delivered by

The action in the court below was brought against the Lehigh Valley Railroad Company for the use of *259the Standard Eire Insurance Company, and arose out of the following circumstances:

Martin’s house was burned by a lire originally started by sparks or live coal emitted from a locomotive engine of the defendant company. He had a policy of insurance on the house in the Standard Eire Insurance Company, which company paid him upon that policy $1,089, and for which he gave a subrogation receipt to the company. He then brought Ms action against the railroad company to recover his entire loss, but it appears that this action was compromised between the parties, by the railroad company paying the amount of the total loss, less the sum received by Martin from the insurance company, which was fixed at $1,500. -

The insurance company then endeavored to collect from the railroad company the amount which it liad paid Martin on the policy of insurance, and upon a refusal of the railroad company to recognize this claim, the action in the court below was brought and resulted in a verdict and judgment against the railroad company. From this judgment the railroad company appeals to this court.

The first ground of appeal is based upon the claim that the trial judge erred in refusing to nonsuit the plaintiff below, because it appeared that another action had been commenced and determined for the samo loss. This manifestly refers to the action brought by Martin against the railroad company to recover the whole amount of the loss, and which was compromised hv the railroad company paying Marlin $1,500, after deducting the amount received by him from the insurance company. That action was obviously settled upon the basis of the liability over by the railroad company io the insurance company, and, therefore, afforded no legal bar to the latter maintaining its action against the railroad company. ■

The next ground of appeal is based upon the assertion, by counsel for appellant, that more than a year elapsed before the action was begun. But this is not so in fact. The fire occurred on the 2d day of May, 1913, and the action was begun by the issuance of the summons on the 30th day of December of that year and the filing of the complaint on the 81 h day of the next succeeding month.

*260The argument of counsel for appellant further proceeds upon the theory that the language of section 58 of the Railroad act (Comp. Btat., p. 4246), creating the special limitation of actions of this nature, 'requiring that they “shall be commenced and sued within one year after the cause or action has accrued and mot after,” limits not only the bringing of the action within the year, but also the prosecution thereof to a finality,- unless good cause for delay is shoVn. But, ejearty, the statute does not mean that. It is well to note here that the Limitation act above referred to was amended by a later statute which enlarged the limitation of one year to two years. Pamph. L. 1912, p. 265. But this is of no importance here.

Moreover, the statute of limitation is a defence which must he pleaded and no such defence is set up in the defendant’s answer.

The only other ground urged for a reversal is that there was no negligence shown on the part of the appellant eompan3 as a producing cause of the fire. We think- that there was evidence on this point requiring the submission of the question involved to the. jury. It is true that there was proof of the examination of the spark arrester of the engine which caused the fire and that the inspector testified to its good order. But there was also evidence that this same engine had set another fire, and only two clays before the one in question, and there was also testimony emanating from an expert called 'by the railroad 'company that where fires repeatedly occur through sparks escaping from an engine, it is good evidence that the engine is not in proper order.

The judgment will be affirmed, with costs.

For affirmance—Ti-ie Chancellor, Oiiiee Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Gardner, JJ. 14.

For reversal'-—None.