We concur with the majority insofar as it holds that the respondent bank violated the restraining notice. Once a restraining notice has been served, a garnishee-creditor may not continue to pay funds on deposit *64to third parties, notwithstanding the garnishee-creditor’s superior right of setoff under section 151 of the Debtor and Creditor Law, unless it first sets aside for the benefit of the judgment creditor an amount equal to twice that due on the judgment (CPLR 5222, subd [b]). We cannot agree, however, with the result reached in this case.
In our view the majority’s decision constitutes a windfall to the judgment creditor, Aspen Industries, which would have been unavailable had the bank complied with the restraining notice and preserved the requisite funds for a determination of the parties’ respective rights to the funds in the proceeding below. It was incumbent on Aspen Industries to prove that it sustained an actual loss by the bank’s violation of the restraining notice. The rule is that when such a notice has been disobeyed, "the garnishee is liable for whatever damage is caused the judgment creditor by the disobedience "(Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5227:l, p 284). Recovery by the judgment creditor should be the amount of its judgment that remains unsatisfied, but limited to the amount in the account which would have been available to satisfy its judgment (Nardone v Long Is. Trust Co., 40 AD2d 697).
The majority ignore the fact that Aspen Industries has suffered no actual injury. It is undisputed that the bank’s right of setoff under section 151 of the Debtor and Creditor Law was superior to Aspen’s right to the judgment debtor’s funds in the bank account (Matter of West Harlem Pork Center v Empire Nat. Bank, 60 AD2d 859) and remained so even subsequent to the service of the restraining notice (Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639, 645-646). At all relevant times the respondent bank had the right to a setoff in the amount of $124,597.64. This amount was substantially greater than the total of all debits allowed during the six-day period plus the ending balance. Thus, even were the bank to have preserved all of the funds deposited with it for an adjudication of the parties’ rights in the proceeding below, Aspen would have had no right to any of this money.
The result should not, as the majority hold, be different merely because the bank disobeyed the restraining notice. Even were this a contempt proceeding, which it is not, the court, in the absence of proof of actual loss, could only impose a fine not exceeding $250 plus the judgment creditor’s costs *65and expenses (Judiciary Law, § 773; Matter of McDonnell v Frawley, 23 AD2d 729). This court here imposes a penalty against the bank in the amount remaining unsatisfied on Aspen Industries’ judgment. No authority exists for the imposition of this kind of penalty and accordingly we dissent.
Simons and Moule, JJ., concur with Callahan, J.; Cardamons, J. P., and Doerr, J., dissent and vote to affirm in an opinion by Cardamone, J. P.
Order reversed, with costs, and petition granted.