Chenango Bridge Company v. Binghamton Bridge Company. modes of reference. After giving the Susquehanna company an unlimited charter and all the faculties and incidents which it had under the act of 1805, it incorporates the Chenango company, and endows it with the same precise rights, faculties and incidents. Under this act the plaintiffs' bridge was built, and they claim for it the rights intended to be secured to them by the legislative provisions enacted in its favor. I think we are obliged by the law to protect them in the enjoyment of those rights. It is probably true that the condition of the country has so far changed that the public convenience requires further accommodations for crossing the river at this point than the plaintiffs' bridge affords. They may show that the legislative acts which we have been examining were improvidently passed. But the men of that day thought otherwise. Whether the present state of material progress in that region has been accelerated to any extent, or if it has, to what extent, by the expenditures of the plaintiffs' corporation, it is impossible to say, nor can we determine whether less encouragement than was given. would have accomplished equal results. We are only concerned to determine accurately what the precise terms of the . legislative contract were, and to give them effect. The circumstances of this case may lead to doubt, in some minds, whether this series of adjudications, which has attributed to legislative acts of this character the force of contracts, within the constitutional provision, was, upon the whole, wise and legally sound. Cases may certainly be presented, if this is not one, where we may think that the private interest of the corporators ought to be forced to give way to the public good. But after a uniform course of decision of the court of last resort upon such questions, upon this precise point, extending over more than half a century, a court possessing only a subordinate jurisdiction upon this class of subjects cannot be expected, at this day, to depart from the old and to strike out a new path. It is not for us to determine, in this action, whether the franchise possessed by the plaintiff is subject to the exercise SMITH.-VOL. XIII. 17 Hobart College v. Fitzhugh. of the right of eminent domain residing in the government of this State. For myself, I cannot see how proprietary rights, acquired under such a contract, should be more sacred than other property which a citizen or a corporation may possess ; and such I understand to have been the judgment of the courts when the question has arisen. (West River Bridge v. Dix, 6 How., 507; Richmond, &c., Railroad v. Louisa Railroad, 13 id., 83; Boston R. R. Co. v. Salem R. R. Co., 2 Gray, 1.) But it will be time enough to consider this question when it shall arise. It would be presented by an act which should appropriate the plaintiffs' franchise to public use, providing at the same time an adequate compensation for the loss. The result of these views is that the judgment appealed from should be reversed, and judgment entered for a perpetual injunction against the maintenance of the defendants' bridge across the Chenango river. BALCOM, J., did not sit in the case. Judgment affirmed. TRUSTEES OF HOBART COLLEGE v. FITZHUGH et al., Executors of Allen Ayrault. Legacy to a college, payable in two years, provided within one year it performed certain conditions. The question whether the condition has been performed does not, until the expiration of the two years, raise a controversy capable of being submitted without action, under section 372 of the Code. The parties asking the court to determine, before the expiration of a year, whether certain admitted facts amounted to a performance of the condition by the legatee, and if not, what further acts were required, no judgment can be given except one dismissing the case. Such a case cannot be entertained as one for the construction of a will, until the expiration of the time for performing the condition, nor without all the parties to be affected, as residuary legatees, next of kin, &c., uniting in the submission. Hobart College v. Fitzhugh. APPEAL from the Supreme Court. The parties united in a written statement of facts, setting forth, among other things, a clause in the will of Allen Ayrault, deceased, in which, after reciting that the trustees of Hobart College were engaged in efforts to raise money to enlarge its sphere of action, “upon the condition that the sum of $40,000 shall, within the period of one year from the time of my decease, be raised for the purpose of endowing two professorships in said college, and paying the debts of said college," the testator bequeathed to Hobart College the sum of $20,000, "to be paid within two years from the time of my decease, for the purpose of founding and permanently endowing an agricultural professorship." The testator died February 4, 1861. On the 30th November, 1861, the parties submitted their statement to the. Supreme Court, at general term, in the seventh district, and asked the court to determine whether the action of the trustees of the college, in raising a subscription of $60,000 for the uses of the college, had satisfied the condition of the bequest; if not, what further sum the college was required to raise; whether the sum of $40,000 was required to be raised after the testator's death, in addition to, and independently of, the effort to raise $60,000 (which provided for other objects than professorships and the payment of debts; the building of a chapel and the endowment of a chaplaincy, among other things), which was known to the testator, to which he had himself subscribed (and his executors paid) $10,000, and which, it was argued, was the effort referred to in the will; and, finally, other questions were submitted relating to the same matter. The court decided that $40,000 must be raised within a year from the testator's death, for the specific endowing two professorships and paying debts, and that the money paid on the subscription for $60,000 should be applied as part of the $40,000, except sums amounting to $34,500, which had been subscribed for other specific objects, chapel, chaplaincy, scholarships, &c. Judgment was entered accordingly, and the executors, who called themselves defendants, appealed to this court. Hobart College v. Fitzhugh. Scott Lord, for the appellants. E. G. Lapham, for the respondents. MARVIN, J. At the time this case was submitted to the court, and when it was decided, the $40,000 contemplated by the will had not been raised or secured by gift, subscription or otherwise. Again, two years had not elapsed from the decease of the testator, and his bequest was not payable until that time. The trustees, called the plaintiffs, had no cause of action, and I am not able to see how any judgment, other than for the defendants, without prejudice to an action at the right time, could have been rendered. The case is not within the provisions of § 372 of the Code. There was no question in difference which might be the subject of a civil action. Under no circumstances could the college have any action until the lapse of two years after the death of the testator. Nor could the parties to this action be parties to a question in difference, which might be the subject of a civil action in favor of the college. The only demand the college would ever have, would be a demand or claim for the $20,000 legacy, and the case shows that this could not be due prior to February 4, 1863, and this case was heard and decided long before that time. There could never be any question in difference as to the amount of the legacy or its time of payment, and none is made in this case. Nor could there be any question in difference touching the performance of the condi tion upon which the right of the college to the legacy depends, until after the lapse of one year from the death of the testator, for the college had this one year within which to perform the condition. The college is regarded in this case as the plaintiff or claimant, and is so styled in the case, and, as plaintiff, asks the court whether it has satisfied the conditions of the bequest, by raising the $60,000 in the manner and for the uses specified, and whether the college is not thereby entitled to receive the bequest at the time when it is payable, by the terms of the will. It does not ask the court to decide that it is entitled to the legacy, to render judgment for it, but to say Hobart College v. Fitzhugh. whether it will be entitled to it at the time it may become due. In short, the court is asked its opinion whether the college had already done enough to entitle it to the legacy when it should become due, and if not, then what must the college do more, to satisfy the condition in the will and entitle itself to the bequest. In short, no judgment is demanded, nor could any be rendered upon the facts stated. The Code defines a judgment to be the final determination of the rights of the parties in the action. No right or rights are claimed in this case, and none existed. It was simply advice, opinion, counsel, that was desired from the court, and whether such advice, &c., should be sound or not, would be entirely immaterial, as it would bind no one, when a real question, which might be the subject of an action, should arise. By the Code the court is to hear and determine the case at a general term, and render judgment thereon as if an action were pending. The court is only authorized to render a judgment as if an action were pending. An action is the legal demand of one's right, or a proceeding for the enforcement or prosecution of a right, the redress or prevention of a wrong. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner. (Code, § 374.) I am inclined to think that the case has been regarded mainly as a case to obtain the construction of a will. I am not aware that a legatee has ever been allowed to maintain an action for the purpose solely of obtaining a construction of a will. The legatee may sue for the legacy, and the question whether he is entitled will, of course, depend upon the will, and this may involve construction. But I apprehend that a legatee would not be permitted to maintain an action simply to ascertain the meaning of a will, in advance of the legacy being due, or without demanding judgment for the legacy. Executors, &c., may bring an action to obtain a construction of a will and the directions of the court, and I have no doubt such a case may be embraced by section 372. The parties to the question of difference, that is, the meaning of the will, are |