Harry Herman, County Attorney (
Frank J. Morgan of counsel), for Sheriff of Westchester County.
Charles E. Doyle for Westchester County National Bank.
the circumstances here presented does not violate any order or mandate of this court. Section 753 of the Judiciary Law sets forth the instances where a court of record has power to punish for a civil contempt. The act of the bank here is not such a violation as is contemplated by this section. Furthermore, section 773 of the Judiciary Law provides in part: "If an actual loss or injury has been produced to a party to an action or special proceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court." A specific remedy is prescribed for by law in subdivision 6 of section 687-a of the Civil Practice Act which provides that where a levy is made upon a debt or cause of action arising out of contract and the person upon whom the execution is levied fails or refuses to make payment to the officer making the levy, an action, by leave of the court, may be brought by the judgment creditor against such person for the recovery of the debt or the enforcement of the cause of action. The Sheriff is not authorized under the said section "to maintain any suit or proceeding for the collection of the debt or cause of action." (Civ. Prac. Act, § 687-a, subd. 2.) The Legislature has expressly provided by virtue of section 687-a of the Civil Practice Act a remedy by action against a person, holding property of a debtor, who refuses or fails to honor a levy of execution. Such remedy is exclusive and contempt will not lie. (See
Matter of Pratt, 158 App. Div. 695;
Houk v. Van Horn, 102 Misc. 263, and
Kahn v. Coles, 115 N. Y. S. 885.) The motion is accordingly denied. Settle order on notice.