The background of this proceeding is a placement ordered by respondent in a situation similar to that presented in Matter of “ Anonymous ’’ v. People (20 AD 2d 395) decided herewith. In this case, the petitioner, Superintendent of Westfield State Farm, refused to honor the order of placement ordered by respondent, a Judge of the Family Court. Upon petitioner’s refusal to accept custody of the person as directed by the order, respondent issued a citation to punish petitioner for contempt. Before the return day of the citation, petitioner initiated the proceeding under review, which resulted in an order of the Supreme Court prohibiting respondent from proceeding in the contempt action.
On this appeal I believe there are only two questions involved. They are whether prohibition is a proper remedy and whether the Family Court has the power to punish for contempt for the failure to comply with its order. As to the first, there is no dispute with the position of the majority that prohibition is a proper remedy to test whether that power lies (cf. Matter of Nolan v. Court of Gen. Sessions, 11 N Y 2d 114; Matter of Kraemer v. County Court, 6 N Y 2d 363).
But whether application of the remedy is called for depends wholly on whether the Family Court has the power to punish for contempt in the situation presented. If the power exists, it is quite immaterial to the decision of the application under review as to how it will be exercised, or even whether the situation is a proper case for its exercise. In this view of the case, the question of whether the court should have ordered placement in the institution in question is not significant. It might well be a different matter if the Family Court lacked jurisdiction to make an order of placement or if the institution were one to which that court could in no instance direct a person to be placed. Absent these factors, the order was proper as a jurisdictional matter and hence should have been obeyed, until and unless reversed or stayed by proper authority. The Warden of a prison does not have competence coequal or superior to a court to determine whether a person is rightfully committed to his custody. And it is of no moment that, absent the jurisdictional situation referred to, he may be quite correct in his contention that the person should rightfully have been ordered to another penal institution, or to none at all. Had the Warden any such right, he could with equal right question any possible flaw in the order or in the underlying conviction or finding. It is patent that he may not do so, and equally patent that attempts *404in that direction would create a condition of havoc requiring instantaneous correction.
We turn now to the question of whether the Family Court can enforce the Warden’s compliance by contempt. The contempt powers of the court are such as set out in section 156 of the Family Court Act reading: “ The provisions of the judiciary law relating to civil and criminal contempts apply to the family court, except that the family court may not treat a violation of any order of disposition as a civil or criminal contempt, unless specifically empowered to do so under this act.” It was held below that the Warden’s act was a violation of an order of disposition, and hence within the proscription against treating it as a contempt. While it is quite true that, generally speaking, the order was one of disposition, its dispositive character concerned only the person whose care was provided for. It must be quite clear that the purpose of the act was to provide sanctions other than contempt to insure compliance with the court’s orders. While the Family Court Act does not elsewhere authorize contempt proceedings under the denomination ‘ ‘ contempt ’ ’, it does in several places provide the usual consequences of a contemptuous disobedience on a procedure in all respects equivalent to a contempt proceeding (§§ 372, 454, 542). In all of these instances it is a person who has been the subject of a prior order who becomes liable to the process in the nature of the contempt (the neglectful parent, the person liable for support, the putative father in a paternity proceeding). The conclusion is inescapable that the restriction in section 156 means that, in situations other than those provided for in the cited and like sections, a person subject to an order shall not be proceeded against by way of contempt, or be subject to imprisonment for his failure to comply.
If this were not the purpose, the grant of contempt powers would be a futility. Obviously the power exists to insure the orderly functioning of the court. That cannot be carried out if the officers to whose execution the court’s mandates are entrusted can comply or refuse at their pleasure. Ordinarily there would be no question that a flouting of an order by such an official would best be met by contempt proceedings, and the limitation on the power of the Family Court Judges as regards contempt does not change this. A holding to the contrary necessitates taking a word out of context to produce an incongruous result.
If in this, as in all other instances, the power is abused, it will then be time to afford relief. But in the absence of knowledge of what will be done, an abuse should not be presumed.
*405Proceeding No. 1:
Botein, P. J., Eager, Steuer and Wither, JJ., concur.
Order, entered on August 21, 1963, unanimously reversed, on the law, without costs, and the matter remanded to the Family Court for disposition not inconsistent with the opinion of this court filed herein.
Proceeding No. 2:
Botein, P. J., and Eager, J., concur with Valente, J.; Steuer, J., dissents in opinion in which Wither, J., concurs.
Order, entered on May 16, 1963, affirmed, without costs.