Resettled order, entered October 23, 1959, adjudging the third-party appellant in contempt and imposing a fine of $3,410.51, unanimously reversed, on the law, on the facts and in the exercise of discretion, and the matter remitted to Special Term for proceedings not inconsistent herewith, with costs to abide the event. The third-party subpoena herein, dated June 3, 1958, was served on June 4, 1958. The existence on June 4, 1958 of the construction contract between the third-party appellant and the judgment debtor and the indebtedness thereunder of the former involved factual issues resolved by the Official Referee in favor of the appellant. It appears from respondent's affidavit in support of his motion to disaffirm the Referee's report that minutes of the hearing were taken but the submission of a transcript thereof with the report was waived. Where, however, the findings of fact of the Referee are disputed, Special Term may not make an order on the report without having before it "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." ( Aron v. Aron, 280 N.Y. 328, 330; see, also, Matter of Tillman, 232 App. Div. 575. )
Concur — Rabin, J.P., Valente, McNally, Stevens and Eager, JJ.