Judgment affirmed, with costs. Upon this record we disregard, as did the parties and the Appellate Division, any implication from the agreed statement of facts that this is a submitted controversy pursuant to sections 546-548 of the Civil *Page 747 Practice Act. We treat the judgment appealed from as an affirmance by the Appellate Division of a judgment entered upon a decision by Special Term after trial upon agreed facts. We also disregard the facts stipulated by the parties after the decision herein by the Appellate Division, which facts were not before that court.

Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER, DYE and FULD, JJ.