I agree that, as pointed out in *358the Presiding Justice’s opinion, there are so many inconsistencies between stipulated facts and documents, and so many ambiguities, that the interest of justice requires a new trial. At that new trial, the true facts can be presented, including particularly the relationship, if any, among the two Fireman’s Fund policies and the Cosmopolitan Mutual policy. On the other hand, I think it is premature for us to suggest the legal consequences of any particular state of facts. Indeed, I do not agree with a number of the Presiding Justice’s legal conclusions on the hypothetical states of facts. But it will be time enough to decide the legal consequences when we know the facts. There are too many factual variables for us to attempt to do so now. Nor do I agree that the rules applicable to a submission of a controversy on an agreed statement of facts under CPLR 3222 necessarily apply to an ordinary plenary action in the course of which the parties make stipulations of fact at the trial, even if those stipulations purport to cover all the facts.
Kupferman, Birns and Fein, JJ., concur with Murphy, P. J.; Silverman, J., concurs in an opinion.
Judgment, Supreme Court, New York County, entered on March 12, 1979, reversed, on the law, without costs and without disbursements, and the case remanded for further proceedings not inconsistent with the opinion of this court filed herein.