It appears conclusively from the recitals of the resettled order that the testimony taken before the *330 referee was not before the justice at Special Term. Where confirmation is opposed of the report of a referee rendered in a proceeding to punish for contempt the court is not justified in confirming the report and making 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. (Cf. rule 170 of the Rules of Civil Practice.)

The orders should be reversed, without costs, and the matter remitted to the Special Term. The certified question is answered in the negative.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran. Finch and Rippey, JJ., concur.

Ordered accordingly.