MATTER OF PIVOT PUNCH DIE CORPORATION

Order modified to the extent of directing that the hearing be before the court and not a referee, and as modified affirmed, with $50 costs and disbursements to the respondent. Memorandum: Recognizing, as we do, the principles enunciated in the Matter of Radom Neidorff ( 307 N.Y. 1) we find in this record sufficient conflicting averments in the lengthy affidavits and voluminous documentary evidence to sustain the determination of Special Term that a hearing should be held to give the parties an opportunity to present their proofs on the controverted issues (cf. Matter of Whitehall Art Co., 6 A.D.2d 399). In view of the holding in Matter of Seamerlin Operating Co. ( 307 N.Y. 407, 416) that under section 113 of the General Corporation Law, Special Term may not review the findings of a referee but becomes functus officio after the appointment of a referee and in the exercise of a proper discretion ( Matter of Whitehall Art Co., supra, p. 400) the hearing should be held before the court and not a referee. All concur.