In the Matter of Frank Di Biasi, Petitioner, v. Mitchell D. Schweitzer, as a Justice of the Supreme Court of the State of New York, Respondent, 22 A.D.2d 684

Petition, seeking an annulment of an order dated October 1, 1964 adjudging petitioner to be in criminal contempt of court and further seeking a vacatur or modification of an order dated September 17, 1964 holding him in $25,000 bail as a material witness, unanimously dismissed. The record establishes that the petitioner refused to testify before the Grand Jury pursuant to subpoena, despite the fact that he was offered immunity in a situation where such immunity could be validly conferred. As a result, the adjudication of contempt was properly made.

The relief sought with respect to the order holding petitioner as a material witness is not available in this proceeding. In any event, no evidence is offered to indicate the impropriety of such order. Concur — Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.