Order reversed, without costs. In our opinion, the agreed statement of facts is sufficient. Since the Appellate Division, taking a different view, has declined to consider or pass upon fact questions, the case is remitted to that court for a determination upon the merits. (CPLR 5613; see, e.g., Matter of Brenner v. Great Cove Realty Co., 6 N Y 2d 435, 444.)

Concur: Chief Judge Fuld and Judges Burke, Bergan and Keating. Judges Van Voorhis, Soileppi and Brbitel dissent and vote to affirm.