In Re the General Assignment of Hevenor

By the provisions of the lease it was open to these appellants, the lessors, to elect to allow the premises to remain vacant; in which case they would have had a valid and certain claim against the assigned estate for the rent as reserved in the lease; or they could take the other course and, as the agents of the lessee, re-let the premises and apply the avails in reduction of the rent reserved in the lease. The effect of exercising the latter option was to terminate the agreement to pay the monthly rent and, thereafter, to leave the matter of any liability of the lessee to them contingent upon the success which the lessors might meet with, in re-letting the premises; a liability which, if it arose, could only be finally and definitely ascertained at the expiration of the demised term; while it might not arise at all.

Under such circumstances, what claim these appellants could have against the assignor, or his assigned estate, must be uncertain and contingent. It could not be regarded as one of the debts, or liabilities, contemplated to be paid, under the deed of assignment. That instrument is to be followed strictly by the assignee in his disposition of the property. It is his guide, and furnishes the measure of his duty. (Citizens' Bank v.Williams, 128 N.Y. 77; Matter of Lewis, 81 id. 421.) It is not contended by the appellants that the deed of assignment is void, for intending to secure debts not in existence; but they argue that the provision for the payment of the assignor's "debts and liabilities, now due or to grow due," can be made to cover a case like this; where, as they say, the liability of the assignor was not changed under the lease, nor his indebtedness, except that it was reduced in amount. They infer from the use of the word "liabilities," in the clause in question, that the assignor intended that his assignee should pay all liabilities which might grow due, without regard to the question of when, or how they arose; provided they were possibilities under his contractual relations with others. This contention naturally assumes that the word "liabilities," as used in the assignment, imports an element, which makes the assignment more elastic in its comprehension of the obligations to be included therein. We think that the General Term was right, in holding that the words "debts" and "liabilities" were synonymously used, and that the assignor could not have intended that liabilities, thereafter to be created by the acts of the lessors in the lease, should be paid by his assignee.

The appellants, in their argument, lose sight of the fact, that by their acts in re-entering the premises and re-letting them as the agents of the assignor, which they were permitted to do under the lease they put an end to his fixed obligation under the lease and left it for the future to determine whether they would have any claim against him. His liability was changed and thereafter could only be for a possible deficiency. The liability, which they now assert the assignor to be under, did not, and could not, exist as of the time when the assignment was made; but arose subsequently thereto. Such after-accruing debts, or liabilities, could not be intended to be secured by an assignment, and if an assignor so declared, in the deed of assignment, it would be void. (Brainerd v. Dunning, 30 N.Y. 211.) No inference can be drawn from this deed of assignment, which contradicts the rules of law, and the liabilities, which the assignee was required to pay, were only those which could be ascertained, or fixed, at the time when the assignment was made; although the liability might not mature into an actual debt until the lapse of some time after the making of the assignment. Every liability is a debt; but the use of the words in connection may be explanatory.

The question was well decided at the General Term, and the order appealed from should be affirmed, with costs.

All concur, except HAIGHT, J., not sitting.

Order affirmed.