
    Viking Yacht Rental Corporation, Appellant, v. American Yachting Systems, Inc., Respondent.
   Order entered on January 11, 1961, denying plaintiff’s motion to disaffirm the Referee’s recommendation as to the amount of the fine and granting defendant’s cross motion to confirm, unanimously modified, on the law, on the facts and in the exercise of discretion, without costs, to the extent of striking therefrom the fourth, fifth, sixth, seventh and eighth decretal paragraphs and the matter is remanded for further testimony with respect to whether damage was sustained by the plaintiff as a result of the defendant’s noneomplianee with the injunctive order of the court dated June 21, 1960, and if so the amount thereof. The purpose of the reference was to determine the amount of the damage sustained by reason of the defendant’s disregard of the injunctive order. While the record demonstrated damage to the boat and there was competent proof as to the amount thereof, there was no proof as to when such damage was sustained. It was thus impossible to determine whether the damage was sustained subsequent to the effective date of the order or whether it pre-existed the same. The Referee recommended that a further hearing be held to establish the facts in connection therewith. In the alternative he recommended that the defendant be fined the sum of $259 together with the costs of the proceeding. Special Term accepted the alternative recommendation. The evidence points to a clear contempt on the part of the defendant. He deliberately disregarded the order of the court. In the circumstances of this case the plaintiff should be given an opportunity to establish, if he can, that the damage to the boat occurred subsequent to the effective date of the injunction and that it was the result of the refusal of defendant to comply with the terms thereof. Accordingly, the matter is remanded for further proof. Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, Eager and Bastow, JJ.  