I concur to annul the order which adjudged the petitioner guilty of criminal contempt. The issues involved and the data pertaining to those issues have been extensively discussed in opinions of other members of the court.
Petitioner was asked to explain numerous transactions and expenditures over a long period of time. His testimony in answer to inquiries has been held to amount to a refusal to answer proper inquiries. The contempt does not seem to have been based upon false answers for which petitioner might be prosecuted but upon an alleged willful failure to testify as to the correctness or incorrectness of expenditures and a willful failure to make an effort to explain the sources of funds which would make the alleged expenditures possible.
*50Many inquiries were based upon information gathered by accountants employed by the prosecutor and after an exhaustive investigation. The inquiries were based upon the assumption that such information was correct. This was not conceded.
There should have been competent proof of the correctness of the data which was assumed to be correct. There should have been a more ample opportunity given to determine such correctness before criminal contempt was based upon a failure to answer definitely the interrogatories proposed.
Hill, P. J., Heffernan and Lawrence, JJ., concur in decision with separate opinions; Brewster, J., votes to reverse the order and annul the determination with opinion; Foster, J., concurs with Heffernan, J.
Determination annulled, order adjudging petitioner guilty of criminal contempt reversed on the law and facts, and the proceeding dismissed, without costs.