This is a controversy submitted to this court pursuant to the provisions of the Civil Practice Act (§§ 473,546-548), upon an agreed statement of facts.
The question to be determined is solely one of law, namely, whether or not the defendant Triborough Bridge Authority has power under the act creating it and the facts here present to enter into a modification of a contract previously entered into with plaintiff after public letting.
The defendant is a public benefit corporation (Laws of 1933, chap. 145), created for the purpose of constructing a bridge spanning the East river from the borough of Queens to the boroughs of Manhattan and Bronx, crossing Ward’s island and Randall’s island.
The act creating Triborough Bridge Authority provides in part as follows: “ § 8. Construction contracts. The authority shall construct the bridges pursuant to a contract or contracts in the manner, so far as practicable, provided in the charter of the city for contracts of said city except where the estimated expense of a contract does not exceed ten thousand dollars such contract may be entered into without public letting, but failure to comply with this section shall not invalidate such contracts.”
The defendant is to issue its negotiable bonds not exceeding $35,000,000, but neither the State nor the city assumes any liability therefor. Arrangements have been made whereby the Federal Emergency Administration of Public Works will furnish the necessary funds for constructing the aforesaid bridge. No funds, therefore, of the State, city or from any private concerns are involved in this proceeding.
The defendant duly advertised for bids for the construction of said bridge in so far as involved in this contract. Plaintiff was the lowest bidder, and a contract was duly entered into between plaintiff and defendant on the 29th day of November, 1933, for a portion *77of the work, the plaintiff agreeing to perform said work for the lump sum of $1,647,000. The defendant has found it necessary to reduce the cost of the bridge by an amount in excess of $7,500,000 by changing the plan from a four-car roadway to a two-car roadway, reducing the cost of plaintiff’s work by some $305,000. The defendant has committed an anticipatory breach of the contract by refusing to allow the plaintiff to proceed with its contract, and has submitted to plaintiff a proposed agreement embodying the revised plan, which the plaintiff is willing to execute provided the defendant has the power to enter into such modified contract without public letting.
Defendant contends that it has the power to enter into the proposed contract and, therefore, in view of its offer to enter into the modified contract and plaintiff’s willingness on its part to enter into such modified contract, claims it is not in default under the agreement of November 29, 1933. Plaintiff, on the other hand, claims a default because of lack of authority on the part of the defendant, and asserts a right to have its damages for breach of contract assessed by a jury.
The only question at issue, therefore, is whether or not the proposed agreement, Exhibit A in the printed record, if entered into by the parties, would be valid or invalid. Unless valid, plaintiff would run the risk of having its pay withheld. The basis of the objection of plaintiff is that a radical modification in the terms and specifications of the contract as originally let could not be entered into by defendant under the Greater New York Charter (§ 419) without public letting. This the defendant concedes. Plaintiff contends, further, that the Greater New York Charter is mandatory upon the defendant, whereas the claim of the defendant is that the act creating the defendant does not require strict compliance with the provisions of the charter, since it specifically provides that defendant “ shall construct the bridges pursuant to a contract or contracts in the manner, so far as practicable, provided in the charter of the city for contracts of said city * * * but failure tr comply with this section shall not invalidate such contracts.”
By the above words the Legislature has clearly indicated its intention that strict compliance with charter provisions was not mandatory and that failure so to comply will not invalidate a contract. By the express wording of this section, therefore, the proposed contract is specifically validated. Furthermore, compliance with the charter is only required '■ so far as practicable.” Since it is conceded, and is borne out by this record that all parties are acting with the utmost good faith, and there is no suspicion of *78fraud or collusion, there can arise no future criticism. The situation here is practically identical with what the situation would be if this contractor had proceeded with the work and the same modification had become necessary when he was half through.
The record further shows that the modification here sought is made necessary by circumstances, and is not arbitrary. The defendant having instructed the plaintiff not to proceed, is clearly in default under its original contract. Two courses only lie before the defendant, either to enter into the proposed modification agreement and avoid a suit for damages, or to advertise for new bids and thus become answerable to the plaintiff in damages for the default under the original contract. This latter course, however, would cause great delay in the completion of a very beneficial public improvement and one entered into at this time for the purpose of turning unemployment into constructive helpfulness. It would be difficult to conceive of a situation which is better covered by the terms of the statute providing that the charter provisions shall not be complied with where it is not “ practicable ” so to do. To hold otherwise would “ impede the usual and regular progress of the public business.” (Harlem Gaslight Co. v. Mayor, etc., of New York, 33 N. Y. 309, 329.)
The question remaining is whether this court has power to render a declaratory judgment upon the agreed state of facts here presented. Section 546 of the Civil Practice Act is broad enough to include such a power.
Since the enactment of section 473, the Supreme Court has power to declare the “ rights and other legal relations ” of parties and its declaration, when given, has the force of a final judgment. The parties to this submission upon the state of facts existing here could, therefore, have maintained an action in the Supreme Court for a declaratory judgment of their rights. If so, then under sections 546-548 of the Civil Practice Act they are entitled ■to a determination of the controversy by this court, because the “ question in difference ” here “ might be the subject of an action or special proceeding ” in the Supreme Court. It seems to have been intended that this court might determine upon an agreed statement of facts any question with respect to which an action might be maintained in the Supreme Court. Moreover, where the facts are undisputed a submission of the controversy in the first instance to this court will avoid the unnecessary expense and delay involved in first litigating the question in the Supreme Court and then bringing it to this court by appeal. In addition, while it is true that the granting or withholding of a declaratory judgment lies in the court’s discretion, we are of opinion that in the circum*79stances here disclosed, the matter being of sufficient public importance, discretion should be in favor of retaining jurisdiction.
It follows that judgment should be granted for the defendant in accordance with the submission.
O’Malley and Untermyer, JJ., concur; Merrell and Martin, JJ., dissent and vote to dismiss the submission.