In view of the stipulation of the parties, my view is that the court below had power to decide this case upon the merits and that we should review its judgment. Since this course is not to be followed, I withhold discussion of the merits upon this appeal.
LOUGHRAN, LEWIS, CONWAY, DESMOND and DYE, JJ., concur with LEHMAN, Ch. J.; THACHER, J., dissents in opinion.
Judgment accordingly.