Upon a careful examination of the proceedings and testimony taken before the referee, I am satisfied that all the findings of fact are supported by the evidence; that no material error was committed in the reception or *658rejection of testimony ; and that the judgment upon the findings is correct.
Fisk and Bowan were bona fide purchasers of the cheese, and for value, and there is nothing whatever in the case to show that either of the executions against Aukin "was levied upon the cheese before the sale and delivery of it to Fisk & Bowan; or that any such levy was made at any time in the month of December, 1865, and of course the title of Fisk k Bowan could not be divested by a levy made after the'sale and delivery to them. And when the sale was made, in January, 1866, upon one or both of the executions, it was made to a stranger, and there is no evidence to connect either the defendant or Grill with any title which the purchaser may have acquired under such sale.
As bailee of Aukin, and having no claim upon the cheese except for the $73, which he was to receive for manufacturing it, he could not by receiving that amount of money from Grill, convey any title to him which would prevent Aukin from regaining possession of the cheese upon payment or tender to Monie of that sum, where the cheese was. In no event would Aukin or his vendee be compelled to seek Grill and make a tender of the money to him before they would be entitled to receive the property; and the more especially as the cheese continued on the premises of Monie, -where the tender was made, and under his control, unless the $73 was paid by Grill to Monie at the request of Aukin. And the result of the action between Grill and Aukin, in which Aukin was plaintiff, and where that question was directly in issue between them, shows that Grill had no claim for it against Aukin. I think, also, that the lease between Grill and Aukin for the place on which the cows were kept, and the milk produced out of which the cheese in question was made, did not give to Grill any property in, or lien upon, the cheese at the time it was sold by Aukin to Fisk k Bowan. The *659only lien or property which that lease gave to Grill upon the products of the farm, was merely as security for the rent of $500, payable on the 1st of ¡November in each year, and the rent of that year, and up to the following March, was paid to Grill some time before the sale to Fisk & ¡Rowan.
I do not discuss these points, because, with the view which I take of the other questions in the case, they are quite immaterial.
There is no doubt that the defendant was, in regard to the milk and the cheese, the bailee of Aukin. (Mallory v. Willis, 4 N. Y. Rep. 76.) And as such he could not set up that, at the time he became bailee, and while he so continued, Aukin was not the owner, except by showing that while he continued such bailee, Aukin parted with his title to it.
Chancellor Walworth, in Marvin v. Ellwood, (11 Paige, 376,) says: “A bailee or agent who has received property, as such, is at all times at liberty to show that his bailee, or principal, has parted with his interest in the property subsequent to the bailment, or to the delivery to the agent. But such bailee or agent cannot, at law, dispute the original title of the person from whom he received the property.” And Story (2 Eq. Juris. § 817) says: “In the case here stated the property is supposed to be lawfully in the hands of an agent of one of the claimants. How the settled rule of law in such a case is, that an agent shall not be allowed to dispute the title of his principal to property which he has received from or for his principal; or to say that he will hold it for the benefit of another. And this doctrine seems equally true in equity also; for it has been held that property put into the hands of an agent by his principal, under a bailment, is not the subject of an interpleader, upon the assertion of a claim to it by a third person against the agent; but the latter must deliver it to the principal, as his possession is the. possession of the principal. The like doctrine will prevail in favor of a third person, to *660whom the principal, after the bailment, had transferred the right to the property in the possession of the agent, where the transfer had been recognized and assented to by the agent. For in such a case, the third "person, by such transfer and assent, would’ in respect to the agent be treated as the principal.” And this principle fully disposes of all claim of defense arising out of the provisions of the lease between Grill and Aukin. The defendant as bailee cannot set up any such defense; nor has he the right to try any such issue.
On the 23d day of December, 1865, Aukin, Fisk and the defendant were together where the cheese was, for the purpose of delivering it to Fislc, for Fisk & Rowan, pursuant to the prior agreement; and then and there the defendant turned it out to Aukin as his property, and separated it from the other cheese in the cellar, and at the same time Aukin turned it out to Fisk, and Fisk marked his initials'on each package of the cheese, and agreed to pay" the defendant $73 for his services on account of it.
If, for any reason, the defendant then had any other claim on the cheese, except for the $73, or if he claimed to hold it then for any one else, he was bound to state it. But he deliberately turned it out to'Aukin as his, and induced Fisk & Rowan to compíete the purchase by taking the delivery and agreeing to pay him the $73; and he is estopped from setting up that at that time he or any other, one had any title or claim to it, except as then stated. Fisk relied and acted upon his doings. (Dezell v. Odell, 3 Hill, 215. Plumb v. Cattaraugus Mutual Ins. Co., 18 N. Y. Rep. 392. Welland Canal Co. v. Hathaway, 8 Wend. 483; per Nelson, J., and 2 Abb. N. Y. Digest, pp. 587, 588.)
At that time the cheese was separated and turned out to Fisk, and he marked the packages; and that constituted a good delivery to pass the title. (1 Parsons on Contracts, 5th ed. p. 531, and note p. 2 Kent’s Com. 500, 501. Hollingsworth v. Napier, 3 Caines’ R. 182.) The title, there*661fore, then passed to Fisk & Rowan, and the defendant became the bailee or agent of Fisk & Rowan, (see last clause of § 817 of Story’s Eq., supra,) and could not, as against them set up any claim or title in favor of himself or any other person, then existing.
But there is another principle which is decisive of this case. The action is in the nature of replevin, and the same principles are applicable to it as apply in the actions of trover and replevin. And the defendant in such action, irrespective of his being bailee, cannot set up title or right in a stranger as a defense, unless he connects himself with such title or right. (Duncan v. Spear, 11 Wend. 54, and note at the end of the case.)
In replevin a defendant will not be entitled to'a judgment for the return of the goods by simply showing property in a stranger; he must connect himself with the title of the stranger, and thus establish a right paramount to that of the plaintiff, justifying the taking of the property out of his possession. (Rogers v. Arnold, 12 Wend. 30.) And substantially the same rule is held in Hoyt v. Van Alstyne, (15 Barb. 572, 573, per Welles, J.)
And as this rule applies to eases where there is no bailment or agency, of course it must be conclusive against a bailee, in such an action brought against him by his bailor, or those who stand in his shoes. It was the duty of the defendant as such bailee, upon tender to him of the $73, to deliver over the property to the agent of the plaintiff*. Such delivery would not prevent Mr. Grill or any other person claiming it, from instituting proceedings to try such claim, and to have the property given up to them. The defendant stood in no relation to them which warranted his interfering in their behalf, while he was bound to deliver it to the plaintiff, and to let other claimants take care of their rights as they should be advised.
If I am right in the conclusion that the defendant'could not avail himself of the defenses which he had interposed, *662then all questions in reference to the competency of the testimony offered in respect to them are entirely immaterial. And as there are no questions of evidence, except such as arise upon the attempt to show property in third persons, there can be no reason for disturbing the judgment, whether such questions were correctly decided or not.
[Onondaga General Term, April 6, 1869.The judgment should be affirmed.
Mullin and Morgan, JJ., concurred.
Bacon, J., did not vote.
Judgment affirmed.
Bacon, Foster, Muffin and Morgan, Justices.]