The learned judge at Special Term aptly said that “ this action is brought by the plaintiff, as trustee of the streets, to ascertain which of the said defendants is the highest bidder ” for the franchise in dispute. The. question is, can such an action be maintained ? If it can, it is entirely proper to preserve the existing status by injunction until the plaintiff’s supposed doubts are resolved upon the trial. If it cannot, then the injunction pendente lite should, of course, be dissolved.-
The equity of the complaint rests avowedly upon the plaintiff’s trust relation to the streets of the city. But for this trust relation, it is not contended that such an action as the present would lie. In fact, it is not the province of a court of equity to act as a general adviser, nor to settle people’s disputes by resolving their own or other people’s doubts with regard thereto. A man who owns property, and puts it up at auction, may be greatly interested to know whether the sale was legally conducted and who -made the highest valid bid. But, even if there were no Statute of - Frauds, he could not well come into a court of equity to have -this ascertained for him, and, upon its being ascertained, to obtain such judg-. ment as against all the bidders, defendants, as might be appropriate. Except in interpleader or some similar and well-recognized head of equity, a party must decide for himself as to his rights. ; Having thus decided, he may assert those rights and submit the issues arising from their denial by his adversary to the arbitrament of .a court regularly constituted to hear and determine disputed questions of fact and law.
The question then is : Does the plaintiff come within . the rule which permits a trustee to ask the opinion of the court Upon a *456doubtful question % To answer this satisfactorily, we must have a clear understanding of the precise nature of the advisory jurisdiction and of the reason why trustees are permitted, under given cir-stances, to Seek instruction and direction from the court.
Primarily, the jurisdiction is incidental, to that over trusts. (Bailey v. Briggs, 56 N. Y. 407.) That is, over express trusts created by some appropriate instrument. The trustee thereby appointed cannot be expected to incur risk in the distribution of the trust fund, or responsibility resulting from an erroneous construction of the trust. This risk and responsibility are such as attach to the trustee in his relation to the eestuis gue trust. But even then there must be some doubt or obscurity as to what the law is and what his conduct ought to be under it, to entitle the trustee to the advice and instruction of the court. (In re Brewer, 43 Hun, 600.) This advisory jurisdiction will not be exercised where the power has been wholly and plainly confided to the trustee (Id.), nor even 'in construing a will, where the estate devised is a legal one, and the questions raised are also purely legal. (Perry on Trusts, 476a; Chipman v. Montgomery, 63 N. Y. 221.) The circumstances which will justify the trustee’s application for advice are those which relate to the terms of the trust itself and to the rights of the beneficiary thereunder. They are not such as relate to the conduct of the trustee in his dealings with third parties. There may, for instance, be a close question, upon the face of the trust instrument, whether the trustee should utilize trust funds in improving vacant lots. He may well be justified in asking instructions upon that head. But he would have no right to ask a court of equity to advise him as to what architect or builder he should employ, or what course he should adopt with regard to a dispute between rival claimants to the building contract, still less with regard to a dispute between himself and those with whom he had contracted. All such doubts and difficulties would be foreign to the trust proper. They would not come within the purview of the court’s advisory jurisdiction. As to these matters the trustee would have to decide for himself what, his proper course should be. He would have to come into court, whether in equity or at law, in the same way as any other suitor, in no other way. He would, in fact, be subject to the ordinary rule that, to put a court of equity in motion, there must *457be an actual litigation in respect to matters which are the proper, subjects of. the jurisdiction, of that court. (Chipman v. Montgomery, supra, p. 230.)
In the present case there is no such trust as the rule invoked by the plaintiff contemplates; The city of Yew. York isa trustee in but a general sense, that is, a trustee not for its citizens alone, but for the public at large. This is nothing more than saying that the fee of the streets is in the corporation subject to public use. It is quite clear that such a nominal trust furnishes no ground for the exercise of advisory jurisdiction. There is no trust instrument to be construed, and there are no cestuis gue trust to be considered. The defendants certainly are not the beneficiaries under the public use trust. They are simply rival claimants to a franchise which the city is authorized to grant Upon certain statutory terms and conditions. The city, as technical trustee for the public use, incurs no risk as trustee, no matter how the franchise may be disposed of. As between itself and the public, it is a matter of. no direct pecuniary consequence how it or its comptroller reads the statute or acts upon the circumstances which attended the bidding. Whatever loss the city may here incur by a false move will be its own direct loss. Indeed, it is so averred in the complaint. It will not be its loss as trustee resulting from its error in a trust capacity. Yor will it be charged with any such loss by a wronged cestui gue trust. It is quite plain that the circumstances under consideration have nothing whatever to do with even the city’s nominal trust. They are foreign thereto both inherently and in their application to the defendants.
There are other objections to the complaint, notably the failure to aver doubt and the contrary averment with respect to bids above 100 per cent of the gross receipts. We prefer, however, to place our judgment upon the distinct ground that the city cannot come into a court of equity for instruction and direction as to the course which it would pursue under the circumstances disclosed. The complaint is demurrable, and the court upon the trial will be required to dismiss it.
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to continue the *458injunction denied, with ten dollars costs, and the temporary injunction dissolved.
Van Brunt, P. J., Rumsey, Williams and Patterson, JJ.> concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and temporary injunction dissolved.