In an action, in form a derivative stockholders’ action brought by plaintiff as a stockholder on behalf of himself and other stockholders, similarly situated, of defendant Martel Motors, Inc., to recover damages and property belonging to the said corporation, which property is claimed to have been or is about to be dissipated by defendant Martel, an officer, the order striking out the defense consisting of new matter contained in the defendants’ amended answer is reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The defense consisting of new matter contained in the defendants’ amended answer is sufficient in law. The order adjudging defendant Martel in contempt is reversed on the law, without costs, and the matter remitted to the Special Term to take proof; and if said defendant be adjudged in contempt, to ascertain the extent of the damages caused by the contemptuous conduct. It was improper to determine the disputed questions of fact upon affidavits. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.