The finding of fact that the defendant was negligent in enforcing the plaintiff’s execution is not against the evidence, The sheriff should have heeded the positive directions and, instructions of the plaintiff, (Root v. Wagner, 30 N, Y. 9.)
*720With reasonable promptness the sheriff informed the debtors of the execution. They claimed that judgment by default had been entered by mistake of their representatives, and that they would have it opened, and they wanted nothing done upon it as it would certainly be taken care of. They gave him to understand that they had the money with the trust company. The debtors’ attorneys, men of high standing, assured the sheriff that the execution would be taken care of, and that if any disposition of the debtors’ property was to be made the sheriff would be notified so that he could make a levy before that time. The debtors were apparently carrying on their large lumber business in the usual way, having some $30,000 worth of lumber in the yard free from incumbrances. The sheriff resided in the same city with the debtors and the trust company, and was apparently well acquainted with them. The trust company, the principal creditor, and the banker of the debtors, assured the sheriff that the execution would be taken care of. He was also informed from time to time that if a levy was made it would precipitate other actions, with the result that bankruptcy would follow. The sheriff must be alert and active, and use reasonable diligence in collecting an execution. He must not, however, be unreasonably oppressive to a solvent business man, where he believes a levy is unnecessary, and all available information indicates that a levy would be oppressive. He is to act promptly, with vigilance, and is to be wise and reasonable. He must exercise a wise and reasonable judgment, unless directed otherwise by the execution creditor. The record indicates that the sheriff was pursuing a wise judgment and discretion with reference to the execution, and was not reasonably chargeable with a neglect of duty with reference to it until he disregarded the positive directions of the plaintiff’s attorneys to make a levy, which directions we find in their letters to him of July eighth. The defendant, therefore, is liable to the plaintiff for any damages he sustained by reason of the fact that a levy was not then made. Whether the plaintiff has in fact sustained a,ny damage by reason of such neglect, is a close question of fact.
The court refused to find as a fact that the debtors were insolvent when the execution was received and at all times *721thereafter, saying that it recalled no evidence to that effect. The debtors, therefore, evidently were considered as solvent, and the case was decided upon the theory that the sheriff, with an execution against solvent debtors, had held it from June third until July twenty-second without levy, in violation of the plaintiff’s directions, during which time the debtors became insolvent. The case upon that theory was easy. This, however, is not such a case. Clearly the debtors were hopelessly insolvent when the execution was received, and a reasonable examination of their affairs would have shown that fact, although the sheriff was misled by the representations made to him. If a levy had been made on July eighth, sufficient time elapsed between that date and the date when the petition in bankruptcy was actually filed, July twenty-fourth, to enable him to make the money and pay it over to the plaintiff, in which case the plaintiff could hold it free from the bankruptcy .proceedings. (Clarke v. Larremore, 188 U. S. 486; Matter of Leech, 171 Fed. Rep. 622; Matter of Weitzel, 191 id. 463.) But the question necessarily arises, if an earlier levy had been made is it probable that the petition in bankruptcy would have been filed earlier ? Could the money have been made before the petition was filed? July fifteenth the attorney of the trust company informed the sheriff “ if those people turned out to be all right and were good and solvent, that the trust company would take it, and we were investigating and trying to find" out if they were good, and they said that they were, and that we had some doubts about it, but if it was the first judgment and it was satisfactory, we were willing to take up the judgment and the bank would buy it.” On that day the sheriff signed a letter written by the attorney for the trust company to the plaintiff’s attorneys that the execution “will be promptly taken care of in due time. The matter is being handled in your best interests.” On the seventeenth he received a telegram from the plaintiff’s attorneys asking an immediate answer as to what had been done. The defendant replied upon the eighteenth that he was sending an assignment of the claim by special delivery. The trust company had caused an assignment of the judgment to be prepared, delivered it to the sheriff *722and informed him that upon its return it would settle with him. The sheriff mailed the assignment to the attorneys on Saturday, the eighteenth. On the twenty-first he received a letter from the attorneys that they would have the assignment executed within the next few days and send it, or bring it, as they had another matter in Binghamton. Upon the twenty-second, before the assignment had been sent, the attorney for the trust company notified the plaintiff’s attorney that it would not take the claim, as it had discovered that the debtors were insolvent and other actions had been brought, and the trust company had all the claims it wanted. The defendant immediately levied, and the petition in bankruptcy was filed two days later. We find that the attorney for the trust company, on or before the fifteenth, was acting with ■ reference to these matters, and it was evidently acting thereafter under his advice. The court refused to allow the defendant to show when the trust company first placed its claim in the hands of its attorney. The defendant’s exception to that ruling was well taken. While the trust company’s attorney had charge of its claim it is unreasonable to suppose that a levy and sale could have taken place without the trust company and the other creditors resorting to bankruptcy proceedings to protect themselves. . The trust company might possibly overlook the situation and permit a sale to take place, but it is improbable that its attorney, who was investigating the debtors’ circumstances, would have permitted it, especially after the fifteenth when we find him saying that they doubted the debtors’ solvency and were examining into that fact. 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. It seems improbable that the trust company and the creditors would have allowed the plaintiff to receive full payment, leaving to them what the plaintiff did not require. Apparently from the time the defendant received the execution there was but one chance of the plaintiff’s realizing payment. It was possible that with a levy imminent the trust company might have been led to take the claim over without a thorough investigation of the circumstances of the debtors. On the eighteenth it contemplated so doing, but before the assignment *723was returned changed its position. It is more probable that if the plaintiff had promptly returned the assignment on Monday the claim would have been paid on Tuesday than it is that the levy and sale could have been made at any time before bankruptcy proceedings were instituted, or that the trust company would have advanced the money without full investigation. The fact that the trust company was apparently willing to take over the claim on the eighteenth raises some inference that if forced it might have done so at an earlier date and that the plaintiff might have been paid. By like reasoning it may be said they would have discovered the insolvency before they actually paid the money.
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. Evidently the debtors could not pay. The question is what would the trust company have done. The question is evidently a close one and deserves more serious consideration than was given to it by the trial court. The defendant failed to impress upon the court the fact that the debtors were insolvent, and the real issue has not been tried. The question for determination is, if a levy had been promptly made or was about to be made, whether the trust company without adequate investigation would have paid the claim, or whether it and the other creditors would have permitted a sale and payment to the plaintiff without filing a petition.
We do not find in the record evidence as to the relations between the trust company and the debtors. Unless their relations are made more fully apparent a jury or a trial justice may be warranted in drawing certain inferences from what is shown and what is not shown. When the sheriff approached the debtors they caused him to believe they had the money with the trust company. The plaintiff’s judgment was recovered May 27, 1914, for $1,389.58. The debtors made an inventory of their stock in trade and property May twenty-third. The inference is not unreasonable that the pending action, about to ripen into a judgment, had some relation to the making of the inventory at that time. A certain inference may arise that, according to the usual custom between banker and customer, *724a copy of the inventory was lodged with the trust company. A bank ordinarily has quite accurate knowledge as to the financial condition of its customers engaged in active business. From the inventory it was evident that the debtors had not property sufficient to pay their debts. It is not unreasonable from what was shown and what was not shown upon the trial to assume that the trust company had knowledge of that fact. The evidence indicates that from the time this inventory was taken until the petition in bankruptcy was filed the liabilities of the firm decreased over $2,000 in the ordinary course of business. And it appears that some obligations due the trust company were paid within the four months’ period before petition filed. An inference may arise that the trust company, while handling the debtors’ money, was seeking for time, and that the reason it gave for its final refusal to take over the claim was an excuse and not a reason. The debtors, who knew. that their property was insufficient to pay their debts, were probably actuated by the hope that through the trust company’s assistance they might be able to retrieve their fortunes. Perhaps they might have paid the execution, which was pressing them, instead of applying it upon other claims less urgent, if they had been left to themselves. It may be they were in the hands of the trust company and it determined where the current receipts should go. It is not satisfactorily shown that the trust company intended to take over the claim; it may be that for some reason time was valuable to it. It is a question of fact which should be met whether the trust company had full information as to the financial condition of the debtors and whether, in view of the facts, there was at any time any reasonable probability that it would pay the claim, or that it and the other creditors would have permitted a sale on execution.
The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.
Lyon, J., concurred.
Judgment affirmed, with costs.