The basis of the motion to punish for civil contempt was the submission of an alleged false affidavit said to be a “ deceit or abuse of a mandate or proceeding of the court” (Judiciary Law, § 753, subd. A, par. 2). The motion on which the affidavit was submitted was withdrawn before any action was taken by the court thereon. The Special Term ordered a reference to ascertain the facts with respect to the transaction upon which the affidavit was submitted. Because we deem it doubtful whether under the circumstances the rights or remedies of plaintiff could be properly held to have been defeated, impeded or prejudiced (Judiciary Law, § 753, subd. A), we reverse the order appealed from and deny the motion.
Dore, J. P., Callahan, Breitel and Bastow, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied.