We are of the opinion that," in view of the conflicting affidavits, the interests of justice will best be served by the direction of a hearing for the purpose of determining whether or not the third party willfully and knowingly testified falsely concerning a material subject or matter upon his examination in supplementary proceedings. (Civ. Prae. Act, § 788.) Moreover, the judgment creditor failed to establish the loss or damage which resulted from the third party’s alleged false swearing. Under the circumstances the imposition of a fine in the amount of the judgment creditor’s judgment was unwarranted.
The order dated September 4, 1956 should be unanimously reversed upon the law and the facts and matter remitted to Special Term for hearing, without costs of this appeal to either party. Appeal from order dated August 22, 1956 dismissed. The latter order was superseded by the order granting reargument (Ruggiero v. Norwegian Shipping & Trade Mission, 269 App. Div. 707).
Pette, Hart and Di Giovanna, JJ., concur.
Order reversed, etc.