
    Leda Gabay, Appellant, v. Esther Rosenberg, as Executrix of Saul Rosenberg, Deceased, Respondent.
    Argued April 6, 1967;
    decided May 18, 1967.
    
      
      Sydney A. Fried for appellant.
    
      Max Wechsler and Albert L. Solodar for respondent.
   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.  