Chadwick a. Booth. dorsement being admitted, but the transfer and delivery being in issue) would, in the first instance, establish his title. This, however, is on the ground that possession of such note is prima facie evidence of the transfer and delivery thereof by a previous lawful owner to the possessor; but the defendant (his answer raising that issue) could nevertheless disprove that the note was ever transferred and delivered to the plaintiff by a previous lawful owner, which he might do in various ways, as by showing that the note had been lost by the owner and found by the plaintiff, or that it had been stolen from the owner, and delivered by the thief to the plaintiff. The facts to be proved in such case (to wit, a case where the making and indorsement in blank are admitted, but an issue is raised as to the delivery and transfer to the plaintiff), to show the plaintiff's title, and to sustain his action, are transfer and delivery by a lawful person to him. Possession of a note is never evidence to prove these facts. Consequently, an answer which denies the facts is sufficient, without denying an averment of a matter which is, at best, but prima-facie evidence of the facts denied. The denial that the plaintiff is the lawful owner and holder is of just as much and no more effect as the averment in the complaint that the plaintiff is the lawful owner and holder. If the plaintiff claims any thing from this allegation in his complaint, then the allegation is fully met; if he claims nothing from it, then the denial goes for nothing, and both the allegation and denial are superfluous. Indeed, this allegation should not be inserted in the complaint; it only opens the door for embar rassment. Motion denied, on the sole ground that the title of the plaintiff to the note is sufficiently put in issue, without prejudice to the right of the plaintiff to make such motion, under section 152 or 160, as he may be advised. Dodge a. Porter. DODGE a. PORTER. New York Superior Court; General Term, October, 1861. ATTACHMENT.-SHERIFF. A sheriff having levied on property under an execution, subsequently attached the same property in an action against both the plaintiff and defendant, in the action in which the execution issued, as joint-debtors, and afterwards sold the property under the execution. It appearing that he was about to pay the proceeds to the execution-creditor, the attachment-creditors obtained an order requiring the sheriff to deposit the money with a trust company, subject to the order of the court. Held, on appeal, that the order was irregular. In the absence of proof that the sheriff and his sureties were irresponsible, he could not be required to part with the property attached. Appeal from an order at special term. This was an action on a promissory note, alleged to have been made by the defendants, Porter and Gordon, under the firmname of Geo. B. Gordon. An attachment was issued on July 7, 1860, and levied upon certain goods belonging to Gordon. But on June 23, 1860, an execution had been issued upon a judgment of the Supreme Court in favor of Porter against Gordon, and levied upon the same goods. After this double levy, the goods were sold by the sheriff. The plaintiffs recovered judgment against both Porter and Gordon; and on an affidavit that Porter, or assignees of his claim, were endeavoring to obtain possession of the proceeds of the goods sold, an order was made at special term, requiring the sheriff to pay the same to the New York Trust Company, subject to the order of the court. From this order Porter appealed. A. R. Dyett, for the appellant.-I. The judgment and execution in Porter a. Gordon were proceedings in the Supreme Court, and this court cannot, by a summary order, prevent the sheriff from executing the process of that court. Dodge a. Porter. II. This is a common-law action, and the order was not an injunction under the Code. III. The lien of the attachment was devested by the sale. The judgment in Porter a. Gordon was valid as between those parties. IV. Neither the plaintiffs nor the court had any right to dispose of the particular fund produced by the sale. V. The court had no authority to require the sheriff to part with the fund. If the money was applicable to the execution, the sheriff was bound to pay it to Porter; if it was applicable to the attachment, it was his right and duty to retain it to satisfy the execution in the attachment-suit. (Code, § 232.) It is not alleged that the sheriff is not responsible. Abram Wakeman, for the respondents. BY THE COURT.*-MONCRIEF, J.-If the plaintiffs recover judgments in their several actions, they will be entitled to be paid out of the property attached, whether it be the property of a firm composed of Porter and Gordon, prosecuting business under the firm-name of G. B. Gordon, or the individual property of either of said copartners. No reason is assigned why such property or its proceeds should be taken from the hands or custody of the sheriff. Section 232 of the Code requires the sheriff among other things, "to keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in the action in which the attachment issued." And section 237 of the Code directs, "In case judgment be entered for the plaintiff, the sheriff shall satisfy the same out of the property attached by him." If the plaintiff's recover judgment in their attachment-suits, it will be their right to have them satisfied out of the proceeds of the attached property. If the sheriff pays the money to Porter, or to any one to whom he assigned after the attachments were levied, he will pay it contrary to his duty, and will be liable to the plaintiffs in the attachment-suits. There is no allegation. that the sheriff or his sureties are irresponsible. We are not aware of any ground on which the order appealed from can be justified. * Present, BosWORTH, Ch. J., HOFFMAN, WOODRUFF, MONCRIEF, and White, JJ. Reilly a. Cook. The order was, therefore, erroneous in directing the transfer of the property attached from the possession of the sheriff, and should be reversed without costs. Order reversed. REILLY a. COOK. New York Superior Court; Special Term, October, 1861. PLEADING.-FRIVOLOUS ANSWER. Where a complaint alleges that the plaintiff, as agent of A., sold and delivered to the defendant certain goods, for which he promised to pay the plaintiff, an answer setting up that the goods sold belonged to a third person, and not to the plaintiff, and that such third person, and not the plaintiff, sold them, and not denying the delivery by the plaintiff, his agency for such third person, or the defendant's promise to pay to him,—is frivolous. Motion to strike out answer as sham, irrelevant, and frivolous, and for judgment under sections 152 and 247 of the Code. The facts appear in the opinion. George Owen, for the motion.-I. The relief asked for is proper, all defects are simply embraced in a single motion. The court may grant the appropriate relief on the facts and the general prayer. (Mills a. Thursby, 11 How. Pr., 114; People a. McCumber, 18 N. Y., 315; Martin a. Kanouse, 2 Abbotts' Pr., 390.) 1. A motion to strike out the answer on one of the grounds mentioned in the notice, would be a bar to a second motion to strike it out on another, and the plaintiff would be liable to pay costs. (Desmond a. Wolf, 1 Code R., 49; Mitchel a. Westervelt, 6 How. Pr., 265.) 2. Bad faith, desire for delay or other unworthy motive, feigned and specious matter, ingenuity and invention, subtle contrivance, are properties of a sham answer. These may be evidenced by irrelevant allegations, equivocal words and sentences, &c., shown to be so by affidavits not fairly met. The use of such words and sentences being Reilly a. Cook. shown to be for a sham purpose, the answer becomes frivolous and the plaintiff entitled to judgment. (Code, §§ 152, 247; 2 Bouvier Law Dict., 375; Darrow a. Miller, 5 How. Pr., 247; Salinger a. Lusk, 7 Ib., 430; Conklin a. Vandervoort, Ib., 483; Walker a. Hewitt, 11 Zb., 395; Manufacturers' Bank a. Hitchcock, 14 Ib., 406; People a. McCumber, 15 Ib., 186; affirmed, 18 N. Y. (4 Smith), 315.) II. The answer, on its face, discloses no defence to the action. 1. It admits by not denying (1.) That the plaintiff as agent and factor of Henry Stephens, sold and delivered various quantities of goods, wares, and merchandise, &c., as in complaint stated. (2.) That the defendant repeatedly promised to pay the plaintiff the same since it became due. 2. The plaintiff, therefore, was a trustee of an express trust. The contract was express to pay him for the benefit of another-the avowal of agency made no difference. (Code, §§ 111, 113; Fanfield a. Adams, 16 Pick., 381; Harp a. Osgood; 2 Hill, 216; Considerant a. Brisbane, 22 N. Y., 389.) 3. The averments in the complaint necessarily showed the action brought as trustee and not individually, and the defendant was bound to meet them by corresponding denials. (Gould a. Glass, 19 Barb., 179; Ogdensburgh Bank a. Van Rensselaer, 6 Hill, 240.) 4. The first defence is a denial negative pregnant. The sale and delivery are denied in the conjunctive form, which is no denial of either. (Salinger a. Lusk, 7 How. Pr., 430; Davison a. Powell, 16 Ib., 467; Shearman a. N. Y. Central Mills, 1 Abbotts' Pr., 187.) 5. The allegations in the first defence, denying "that sum, or any part thereof, is due from defendant to plaintiff," and the whole of the third defence, consists of conclusions of law. (Pierson a. Cooley, 1 Code R., 91; Daniels a. Hallenbeck, 19 Wend., 408; Russell a. Clapp, 7 Barb., 482; 5 How. Pr., 14; Ford a. Sampson, 30 Barb., 183; Higgins a. Freeman, 2 Duer, 650; Lawrence a. Wright, Ib., 673; Bentley a. Jones, 4 How. Pr., 202; Parker a. Totten, 10 Ib., 233; Tompkins a. Acer, Ib., 309; Adams a. Holley, 12 Ib., 326; Thomas a. Desmond, 1b., 321; Drake a. Cockroft, 1 Abbotts' Pr., 203.) 6. The denials are bad for duplicity. (Brown a. Ryckman, 12 How. Pr., 313.) 7. The second defence is bad on authority. It is averred the goods were sold by Stephens, while it is not denied they were delivered, and promised to be paid for, to the plaintiff as agent |