
    Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Lloyds Insurance Company of America, Appellant, v. Isle Theatrical Corporation, Respondent.
    (Argued May 27, 1936;
    decided July 8, 1936.)
    
      
      Irvin Waldman and Alfred C. Bennett for appellant.
    
      
      Lawrence S. Timen, Anthony K. Miller and Nathan J. Hellerbach for respondent.
    
      
      J. M. Richardson Lyeth and Frederick H. Van Houten for Vincent Astor, amicus curias.
    
   Crane, Ch. J.

We agree with the decision of the Appellate Division and modify it merely as to the amount of the setoff. The case came to the Appellate Division upon a stipulation of admitted facts. The court cannot consider matters not included within this stipulation.

We agree that the defendant may set off against the amount of premiums due the sums which it has been obliged to pay upon the award. Such was our holding in Matter of People (Empire State Surety Co.) (214 N. Y. 553). By the stipulation the amounts paid by the defendant were $144 on December 12, 1933; $60 paid after December 12, 1933, and $372 after February 16, 1934. These sums, with interest, may be offset against the premium, the balance only being due.

The litigation is to determine the right to setoff. As stated, in this we agree with the Appellate Division. Confined as we are, however, to the statements contained in the stipulation of facts, we are obliged to modify the determination of the Appellate Division which directed judgment for the defendant, and award judgment to the plaintiff for the balance due over and above the setoffs, as stated in the submitted questions of fact — no costs.

The parties in their stipulation of admitted facts submitted six questions for the courts to answer. While there is no objection to this form of presenting the controversy, the courts are not obliged to answer the questions so long as they decide the case presented. The Appellate Division, however, in its opinion has answered the first five questions in the affirmative and we shall add an answer in the negative to the sixth question.

The judgment should be modified in accordance with this opinion and as so modified affirmed, without costs.

Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgment accordingly.  