
    (June 8, 1939.)
    Jennie Karp, Respondent, v. Jacob Karp, Appellant.
   The decision of this court handed down on June 5, 1939 [ante, p. 966], is hereby amended to read as follows: In an action for divorce, defendant appeals from an order adjudging him to be in contempt of court and imposing a fine therefor. Order modified to the extent of striking out the provision adjudging the defendant in contempt of court and imposing a fine, and the matter remitted to Special Term for further proceedings in accordance with the rule stated in Aron v. Aron (280 N. Y. 328); and, as so modified, the order is affirmed, without costs. Where, as here, confirmation is opposed, of the report of a referee in a proceeding to punish for contempt, the court is not justified in confirming the report and malting an order to punish for contempt without consideration of the testimony in some form or agreement by the parties as to its substance sufficient to permit the court to pass upon a challenge made to the sufficiency of' the evidence. (Ibid.; and see Rules Civ. Prac. rule 170.) Neither of these alternative essentials was incident to the proceedings of the court below and remission is, therefore, proper. If this court were not lacking in power so to do, it would modify the order appealed from to the extent of striking out the finding of contempt and punishment adjudged therefor, and as thus modified, would affirm it. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.  