The opinion of the presiding justice holds that the defendant was negligent and that he should have heeded the positive directions and instructions of the execution creditor. But it relieves him from the consequences of his negligence thus found because had he proceeded with diligence as he was directed to *717do by the judgment creditor the debtors might have invoked the aid of the Bankruptcy Law. It has long been the policy of the law in this and other States that a diligent creditor is entitled to the fruits of his diligence. It is the duty of a sheriff to conserve and promote that right of the diligent creditor rather than to nullify it by indifference or a desire to conserve the rights of an execution debtor, no matter how sincere the sheriff may be in his conviction that the judgment will ultimately be paid. The Federal policy, as expressed in the Bankruptcy Law, recognizes equality among creditors and is to that extent inconsistent with the State policy of preference to a diligent creditor. When a petition in bankruptcy is filed the State policy must, therefore, yield to the Federal policy. But until resort is made to the Bankruptcy Law the diligent creditor has a right to insist on the advantages secured by his diligence and the facilities afforded by the law for the collection of his execution and the sheriff has no right to temporize with the debtor on the theory that he may or may not be solvent and that a certain course of procedure is just as advantageous to the creditor as the course which the law contemplates. Particularly is this so where as in this case the judgment creditor was urging and insisting that the sheriff should proceed under the execution. It was not for the sheriff to say that a policy of dilatoriness and equivocation was best for the plaintiff; that if he followed the instructions of the latter bankruptcy might be precipitated; and that the matter was being handled according to the best interests of the plaintiff. His duty required positive action. Hot only did the law enjoin this duty but such was the positive instruction of the plaintiff. It is impossible for any one to say that had the sheriff acted with diligence and promptness the bankruptcy of the judgment debtors would have been precipitated. It does not follow that because a man is insolvent he will go into bankruptcy. It does not follow that because the judgment debtors in this instance were insolvent when the sheriff received the execution in question such judgment debtors would have been forced into bankruptcy or would have invoked the benefit of the Bankruptcy Act if the sheriff had insisted promptly on enforcing the execution. Frequently men who are insolvent hope to tide over their insol*718vency; frequently they do not. themselves realize their insolvency although it exists; frequently other creditors deem it wise and expedient to come to the assistance of the crippled debtor for the purpose of keeping his affairs afloat for the time being in the hope of improving conditions; frequently for various reasons although insolvency exists the time is not ripe to file a petition in bankruptcy. If we are at liberty to indulge in conjecture my own conjecture would be that in this case suitable diligence on the part of the sheriff would have been rewarded by the payment of the execution in question because everything indicates to my mind that either in the opinion of the judgment debtors or some of their creditors who were standing back of them the time was not yet ripe for filing a petition in bankruptcy and that if the sheriff by diligent action had placed upon the judgment debtors and those who were assisting him the alternative of deciding between immediate bankruptcy and the payment of the plaintiff’s execution the decision would have been in favor of the latter alternative. But whether that be so or not is a question which should not have been injected into this case by the negligence of the defendant. It is stated in the opinion of the presiding justice that “ there is no evidence to indicate that if a levy had actually been made a sale could have taken place before a petition in bankruptcy was filed,” and again “the question presented is a mere question of probabilities, approaching somewhat near pure speculation as to what would have happened if an earlier levy had been imminent.” My opinion is that because it is a mere question of probabilities and “ pure-speculation ” the evidence in no aspect of the case most favorable to the defendant is sufficient to relieve him from the negligence of which the opinion of the presiding justice convicts him. The negligence of the defendant establishes prima facie his liability for the amount which he was commanded by the execution to collect, and the burden is upon him to relieve himself from the consequences of his own negligence which he may do in mitigation of damages. (Pach v. Gilbert, 124 N. Y. 612; Ledyard v. Jones, 7 id. 550; Bank of Rome v. Curtiss, 1 Hill, 275.) The effect of the opinion of the presiding justice is to relieve the defendant from this burden *719and throw it upon the plaintiff. If the trial court had found, as requested, that the judgment debtors at the time the sheriff received the execution were insolvent it would not in my opinion help the defendant, because the evidence does not justify an inference that if the sheriff had acted promptly he would have precipitated the bankruptcy proceedings. As before stated, the sheriff by prompt action should have kept this question out of the case and should not now be permitted to excuse his conceded negligence by raising a conjecture which but for his negligence would not exist. To permit him to do so is, in the language used in Ledyard v. Jones (supra), to allow “an unfaithful and defaulting officer to take advantage of his own wrong, a privilege that the law accords to no other person.” Hiving to the defendant all the inferences to which he is entitled on this question it does not appear that he could not have collected the execution. He has not sustained the burden which the law properly places upon him of showing that his negligence has not damaged the plaintiff. All the evidence pertinent to this question is in the possession of the defendant. It is not and cannot be claimed that the record on another trial can be substantially changed. In the very nature of things the question will always be one of “probabilities approaching somewhat near pure speculation as to what would have happened ” if the. sheriff had not been negligent. Another trial means merely another chance for the defendant to again speculate and conjecture “ as to what would have happened ” if he had done his duty, and all this at the expense of the plaintiff. I think the court should stop conjecturing and speculating and decide this case upon the evidence now before us and which is necessarily substantially all which can ever be produced.
I favor an affirmance of the judgment.
All concurred, except Kellogg, P. J., dissenting in memorandum, in which Lyon, J., concurred,