(dissenting). No action or proceeding has been brought in the Supreme Court to obtain a declaratory judgment pursuant to section 473 of the Civil Practice Act, and, therefore, upon a submission of controversy, the right to a declaratory judgment cannot be determined. (See Rules Civ. Prac. rule 210.)
We do not think the stipulated facts show the existence of any real “ controversy ” between the parties which may be submitted to this court under sections 546-548 of the Civil Practice Act.
It appears from the agreed statement of facts that on November 29, 1933, the plaintiff and the defendant entered into a contract for the construction of the towers and anchorage cable bents required in the construction and erection of a bridge over the East river from the borough of Queens to the boroughs of Manhattan and The Bronx, over and across Ward’s island and Randall’s island in said river, and which construction of towers and anchorage cable bents was in accordance with plans and specifications therefor, and for which the defendant agreed to pay the plaintiff the sum of $1,647,000, besides the sum of $14,000 for ornamental work, in the manner and upon the terms and conditions set forth in said contract. The defendant did not advertise for bids for the construction of said bridge, but only for the small part thereof upon which plaintiff was the low' bidder. Bids for the main part of the bridge and contracts therefor are yet to be advertised and let. The work awarded to plaintiff was to be done pursuant to the terras of said contract and to be financed from moneys obtained by the defendant upon loans and grants from the Federal Emergency Administration of Public Works. It is stipulated that the plaintiff, pursuant to such contract, duly entered upon the performance thereof; that since the making of the award to the plaintiff there has been a change in the membership of the commission constituting the defendant Triborough Bridge Authority and in the engineering staff, and that the defendant, as now constituted, in an effort to reduce the cost, evolved a new plan or design which it is expected will cause a saving in excess of $7,500,000 in the expense of erecting the bridge; that the new plan and design changed the drawings which were part of the plaintiff’s contract, principally by eliminating therefrom two upright columns, thereby *80changing basically the design of the bridge from one of a tower of four upright columns and two levels of roadway, to one of two upright columns with only one level of roadway, together with corresponding changes in the anchorage cable bents, and also requires the conforming of the fabrication and erection of steel to said revised plan. It is further stipulated that the parties hereto agreed that the fair and reasonable value of performing the plaintiff’s contract in accordance with the changes aforementioned is the sum of $1,345,00(3, instead of $1,647,000, as to division I, and the sum of $11,000, instead of $14,000, as to division II, concerning the ornamental work; provided the defendant pays to plaintiff in addition thereto the sum of $60 per ton for materials rolled or rolled and fabricated which cannot be used advantageously in furtherance of the revised design, said material to belong to plaintiff; and provided further that plaintiff is relieved of payment of the cost of inspection. In the agreed stipulation of facts section “ K ” of the contract is set forth, as follows: “ (K) This contract and the specifications herein contained and the plans hereinafter referred to, may be modified and changed from time to time as may previously be agreed to in writing between the parties hereto, in a manner not materially affecting the substance thereof, or increasing the price to be paid in order to carry out and complete more fully and perfectly the work herein agreed to be done and performed.”
It is further stipulated that the defendant has refused to permit plaintiff to proceed with its contract in accordance with the original plan or design, and has submitted to plaintiff a proposed agreement embodying the revised plan or design, a copy of which is annexed to the stipulation of the parties, and which agreement the defendant is willing and offers to execute. It is further stated in the stipulated facts that the defendant maintains that it has the power and right to execute said agreement, and that such agreement, if executed by plaintiff and defendant, would be a valid and binding agreement upon both parties thereto. It is further stipulated as follows: “ That the plaintiff is willing to execute the proposed agreement and to abide by the terms thereof, but maintains that the defendant has no power or right to execute the same, and that such agreement, if executed by plaintiff and defendant, would be null and void and not binding upon the parties hereto.” (Italics are the writer’s.) And further: “ Both parties hereto agree by this stipulation that if the Court holds that the defendant has the power and right to execute said proposed agreement and that if this Court holds that the execution thereof by plaintiff and defendant would constitute a valid and binding agreement upon both parties hereto, that they will, immediately upon the coming in of the decision, execute the *81said proposed agreement, and the same shall become a valid and binding agreement upon the parties hereto.”
The plaintiff asks judgment that the court hold that the defendant is without power to execute the proposed agreement, even if consented to by plaintiff, and that such proposed agreement, if executed, would be null and void, and that the court hold that the refusal of the defendant to permit the plaintiff to proceed with the performance of the work in accordance with the original contract constitutes a breach of the contract by the defendant, and that the plaintiff is entitled to recover all damages, including the prospective profits, and that the same be promptly assessed by a jury before the Supreme Court.
The defendant asks judgment that the court hold that the defendant has the power to execute the proposed agreement, and that if the same is executed by the plaintiff and defendant, said proposed agreement will be valid, binding and enforcible upon both parties; and the parties having stipulated hereto to execute the same, they shall promptly execute the said proposed agreement in accordance with the stipulation, and the same shall thereupon become valid, binding and enforcible upon both parties, and that if the plaintiff refuses to do so it shall be deemed in default of itse contract, with authority in the defendant to relet the work to others without being liable to plaintiff for damages.
Upon the argument, members of this court intimated that there could be no questions as to the authority of the parties to agree upon a modification of the original contract in the manner suggested. Counsel for the plaintiff then stated in open court that the original plans might be modified in accordance with the plan proposed, and that, if the court should so hold, the plaintiff was willing to proceed with the work in accordance with the modified plans, Waiving any damages which the plaintiff may have sustained by reason of the modification of the original plans.
It, therefore, clearly appears that the parties are both willing and desirous of prosecuting the work under the revised plans. There is, therefore, no real controversy between the parties to this proceeding, and that all the parties desire is to have this court signify that in its opinion the proposed modification is entirely lawful and that the parties may legally agree to the proposed contract of modification. In short, the parties are seeking the counsel and advice of this court as to their right to enter into the modified contract.
The stipulated facts do not disclose that there is any real controversy between the parties. All that the parties desire is that this court advise as to the legality of the proposed modification of the plans for the erection of the Triborough bridge, and whether *82the parties may legally execute the proposed contract for the modification of the original contract adopted between the plaintiff and the defendant. This we do not think is the province of this court, which is only to determine the law upon stipulated facts between parties to a controversy. The furnishing of advice as to the course to be pursued by those representing the city of New York is peculiarly the function of the corporation counsel, and not of this court. This court is for the purpose of deciding real controversies arising between parties, and is not called upon to furnish advice as to the legality of a desired course of action, or to decide moot questions of law.
The legal questions presented on the stipulated facts, under the plain provisions of the original contract entered into between the parties on November 29, 1933, do not present so intricate a question of law as to make it difficult for the corporation counsel to correctly advise the parties. This proceeding should, therefore, be dismissed.