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By the Court.

Barrett, J.

The answer is clearly frivolous. The relation of bailor and bailee is admitted; also, the sale of the goods, and the rendition of an account showing the net proceeds in the defendants’ hands belonging to the plaintiff. The non-payment of this amount is sought to be justified by averring title in a third person, one Arnstein, against whom an attachment was issued, which is stated to have been levied upon the goods in question “ and their proceeds ” in the defendants’ hands, and under which, after notice to the plaintiff of the levy, these proceeds were paid by the defendants to the sheriff of this county. There is also another averment, inconsistent, however, with the prior plea, to the effect that these very proceeds were paid to the attorney for the plaintiff in the attachment, “ under and by virtue of an order issued by the Supreme Court.”

This order is not appended, what it really directed is not stated, and no jurisdictional fact is set up. Such an averment is worse than frivolous. It savors of duplicity.

With respect to the other plea, the appellants are fully met by the familiar principle that the bailee cannot, in general dispute the title of his bailor, nor set up a better title in a third person.

The special matter here pleaded wholly fails to bring the case within any of the exceptions to this rule.

The property was not taken by due process of law, nor by title paramount, nor is it charged that it was obtained by felony, force, fraud, or collusion with Arnstein (Bates v. Stenton, 1 Duer, 78, and cases there cited). The due process of law which has been held to exonerate the bailee is that which is set in motion directly against the bailor (Bliven v. The Hudson River R. R. Co., 35 Barb. 191; Burton v. Wilkinson, 18 Verm. R. 186). Here, as between the plaintiff and the defend*38ants, the former was primafacie the true owner, and the levy under an attachment against another did- not prevent the defendants from paying over to the plaintiff, nor, as to either of them, did it place the goods or their proceeds in the custody of the law (Rogers v. Wier, 34 N. Y. R. 463). Even where the sheriff, under such circumstances, is indemnified, and removes the'goods by force, the bailee is bound to treat such acts as a naked trespass, and to protect his bailor. Otherwise, he adopts the situation of the attaching creditors, with all its attendant peril. Such are the consequences which flow from mere passiveness. But, here, the defendants have been guilty of an active and .direct" breach of duty in voluntarily paying the money over to the sheriff. We say voluntarily, because the payment was not directly compelled (Scranton v. Farmers' and Mechanics' Bk. of Rochester, 24 N. Y. R. 424; Welles v. Thornton, 45 Barb. 390). It is plain that such payment was in fraud of the plaintiff’s rights, and cannot be justified by the mere averment, bad in itself, of title in the defendant in the attachment.

The order should be affirmed, with costs.

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