Order modified to the extent of directing that the hearing be before the court and not a referee, and as modified affirmed, with $50 costs and disbursements to the respondent. Memorandum: Recognizing, as we do, the principles enunciated in the Matter of Badom & Neidorff (307 N. Y. 1) we find in this record sufficient conflicting averments in the lengthy affidavits and voluminous documentary evidence to sustain the determination of Special Term that a hearing should be held to give the parties an opportunity to present their proofs on the controverted issues (cf. Matter of Whitehall Art Co., 6 A D 2d 399). In view of the holding in Matter of Seamerlin Operating Co. (307 N. Y. 407, 416) that under section 113 of the General Corporation Law, Special Term may not review the findings of a referee but becomes functus officio after the appointment of a referee and in the exercise of a proper discretion (Matter of Whitehall Art Co., supra, p. 400) the hearing should be held before the court and not a referee. All concur. (Appeal from an order of Erie Special Term denying motions to amend the title to the proceeding and to dismiss the petition, granting petitioner’s cross motion to strike out respondents’ motion to dismiss, and other relief, in an action to dissolve a corporation.) Present — MeCurn, P. J., Kimball, Bastow, Goldman and Halpern, JJ.