I concur in the result of Mr. Justice- Patterson’s opinion.
I do not see, however, that there is any distinction between the case at bar and the Case of Hevenor (144 N. Y. 271). The assignee in the case cited was required to pay debts and liabilities now due and to grow due. What greater or other obligation rests upon the receiver of a corporation ? Is it not to pay, as far as the assets which come into his hands will permit, the debts and liabilities of the corporation due at the time of his appointment and to become due?
In the case of Hevenor, however, it seems to me that the court overlooked the fact that the obligation to pay rent continued to the end of the lease. All that the landlord did was as the agent of the lessee. He did not enter as of his original title. His entry did not *552terminate the lease any more than the entry of any other person by the permission of the lessee would have had such operation.
The Hevenor case (supra) seems to have proceeded upon the theory that the claim of the landlord under these circumstances is one created and arising subsequent to the assignment, and hence not within the terms' of the assignment. (Brainerd v. Dunning, 30 N. Y. 211.) It seems to me that no liability is created or discharged by the re-renting by the landlord on behalf of the tenant if so permitted by the lease. It may be uncertain what will be the. .ultimate amount required to be paid, but the liability to pay was created when the lease was executed. The liability of an indorser upon a note is uncertain, dependent upon the ability of the maker to pay; and yet such liabilities have been held to be properly included in the provision of an assignment.
• How much more certain is the liability of a lessee who lias covenanted to pay rents, who is the primary debtor and whose debt is reduced by the rent received by his agent on his behalf. How would the. landlord' proceed to enforce his claim for deficiency ? Would he not sue upon the lease, setting up the covenant to pay rent as his cause of action ? He could proceed upon no other theory and would recover upon the covenant in the lease.. •
..In the case of a note to which collaterals have been attached, the holder of the noté, upon its not being paid, would bring his action upon the note, crediting any amount he had received upon the col-laterals. So in the case of the lease, the action would be upon the lease, the credits being the amount of rent received from the renting of the premises on behalf of the lessee; the liability being One created .by the lease.
: It is to be observed that the words “ debts due,” do not necessarily mean debts which are presently payable, but include those which mature- in the future. (Leggett v. Bank of Sing Sing, 24 N. Y. 283.)
. . It seems to me, therefore, that in the case at bar there was an existing obligation to pay a sum certain, subject, however, to reduction by-the amount which the agent of the lessee should collect on his behalf. • .
The order appealed from should be affirmed.
Order affirmed, with costs.