Second Department, December, 1911. [Vol. 147. Gordon he used $1,700 of his private funds to help her before he could pay her from the estate and she made him a present and is not here disavowing it or complaining. The decree proceeds on the theory that Edith Gordon did not receive all that she was entitled to and yet the balance which it is claimed belonged to her is by the decree given to other parties. I think after the payment to Edith Gordon of the amount of her legacy it was hers to do with as she chose, and until she makes some protest or expresses some dissatisfaction other parties cannot by judicial decree be given any portion of her property which she saw fit to give to this executor. (Barr v. N. Y., L. E. & W. R. R. Co., 125 N. Y. 263, 275.) It follows that the decree of the surrogate should be reversed, with costs payable to the executor out of the estate. Decree of the surrogate modified as per opinion and as so modified affirmed, without costs. QUEENS TERMINAL COMPANY, Respondent, v. J. CARL SCHMUCK and Others, Appellants, Impleaded with ELLA M. SCHMUCK and Others. Second Department, December 8, 1911. agree Eminent domain — condemnation of lands to construct canal ment by condemnor to divest itself of rights after condemnation public use other than that for which condemnation was authorized — appeal from order confirming report of commissioners — right of petitioner to bring proceedings - public use judicial question-obligation of condemnor to public — when use private. The Tidal Water Way Company, incorporated by the Laws of 1894, chapter 719, and given power to condemn lands to build a canal connecting tidewaters and to condemn lands on either side of the canal for a distance of 1,000 feet, having contracted with another corporation to transfer all its rights over the canal when constructed so as to relieve it from any duty respecting the same, and the other corporation having in its turn agreed to convey the canal to the town of Hempstead, which has made no agreement to maintain it as a public waterway and has no statutory authority to construct or maintain canals or to exercise the power of eminent domain for that purpose, has departed from the specific App. Div.] Second Department, December, 1911. use for which it was invested with power of eminent domain, and, therefore, has no right to condemn the lands as authorized by statute. It is not sufficient that a condemnor intends to devote lands acquired to some public use; they must be devoted to the specific use, or a part thereof, for which the power to condemn was given. (Per BURR and THOMAS, JJ.): An appeal from an order confirming the report of commissioners of appraisal appointed in condemnation proceedings brings up for review the right of the petitioner to condemn lands. The fact that an act authorizing the exercise of the power of eminent domain states that the use is a public use is not conclusive. The determination of that question is a judicial one for the court. The power to exercise eminent domain can only be conferred on a corporation where it is under the obligation to perform a public, or quasi public, duty. The act authorizing said Tidal Water Way Company to condemn lands as aforesaid is unconstitutional because it allows the taking of private property for a private use, in that it contains no provision that the buildings and warehouses which may be erected on lands condemned abutting upon the canal may be used by the public, even if it be assumed that the title was to remain in the condemnor. RICH and HIRSCHBERG, JJ., dissented, with opinion. REARGUMENT of an appeal by the defendants, J. Carl Schmuck and others, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 14th day of January, 1910, confirming the report of commissioners of appraisal herein, with notice of an intention to bring up for review an interlocutory judgment of the Supreme Court, entered in the said clerk's office on the 8th day of February, 1908, appointing the commissioners whose report was confirmed. James S. Darcy [William S. Pettit with him on the brief], for the appellants. Edward M. Grout [Frank R. Greene and Paul Grout with him on the brief], for the respondent. BURR, J.: The appeal from the order confirming the report of the commissioners of appraisal brings up for review the judgment which appointed them. The right of petitioner to maintain these proceedings lies at the threshold thereof, and may be Second Department, December, 1911. [Vol. 147. thus reviewed. (Code Civ. Proc. § 3375; Matter of Niagara Falls & Whirlpool R. Co., 108 N. Y. 375.) Attack upon such right is based upon two grounds: First, that statutory authority does not exist to exercise the right of eminent domain for the purpose for which in this instance petitioner seeks to deprive defendants of their lands, and, second, that the act under which it obtains its corporate life violates constitutional provisions. Petitioner was incorporated by a special act, entitled "An Act to incorporate the Tidal Water Way Company and to define its rights, powers and privileges." (Laws of 1894, chap. 719.) Subsequently, upon petition to the Supreme Court, an order was entered changing its name to the "Queens Terminal Company.' The first purpose of its corporate being expressed in said act is "to construct within the limits of the first senate district as now established canals of such length, width and depth, as a majority of the board of directors may determine, connecting the tide waters adjacent to or within the limits of said first senate district." In addition, either as incidental to the power already conferred or by way of a grant of additional power, the act provides that the company shall have "power to lease or sell real estate acquired by it; * to take and hold such voluntary grant of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its canals, locks, basins, fixtures, buildings, docks, wharves and appurtenances, and to acquire by purchase or condemnation such real estate and property as may be necessary therefor, including land on either side of said canals to a distance of not exceeding one thousand feet." A still later clause in said act includes among its buildings "warehouses." If the particular scheme in which petitioner is now engaged is not a public enterprise within the true meaning of the term, or if it is not seeking to acquire defendants' land for any purpose for which the Legislature gave it the power of condemnation, petitioner must fail. The determination of these questions is a judicial one belonging to the courts. The fact that the act declares in words that it is a public act, or even that the taking is for a public use, is not conclusive. (Matter of Townsend, 39 N. Y. 171, 174; Matter of Deansville Cemetery Association, 66 id. 569; Matter of * App. Div.] Second Department, December, 1911. Eureka Basin W. & M. Co., 96 id. 42; Matter of Niagara Falls & Whirlpool R. Co., supra; Matter of Split Rock Cable Road Co., 128 N. Y. 408.) Even if the petitioner intends to devote the land acquired to some public use, this alone would not be sufficient. It must be the specific public use, or a part thereof, for which it has received the power to condemn. (Erie R. R. Co. v. Steward, 61 App. Div. 480; affd., 170 N. Y. 172.) It appears that the town of Hempstead in 1907 conveyed to the corporation known as the Estates of Long Beach certain lands to be used for its private enterprise, and that in connection with the development of its property the Estates undertook to construct a waterway for the purpose of connecting Broad Channel and Dutch Gunning Lead, which are tide waters. The land necessary for this purpose did not belong to the Estates Company, and it is conceded that it had no power to acquire the same in invitum. It, therefore, made a contract with petitioner to do that which the Estates had previously undertaken to do for its own private purpose, but which, lacking the right to exercise the power of eminent domain, it was unable to do. If this is not perfectly clear from the evidence adduced in this case, it is perhaps due to the fact that testimony competent to establish this fact was erroneously excluded. If the act referred to can be sustained as one conferring such power for a public use, it must be upon the ground that the chief corporate purpose of its creation is to improve the waterways within the territory described by the construction of canals which shall be public waterways, and that all other powers in the act expressed are incidental thereto. But by the express provisions of the contract between the petitioner and the Estates Company, the former completely divests itself of any power over the canal to be constructed as soon as it is completed, and is relieved of any duty respecting the same. The grant of the power of eminent domain carries with it a public duty. "The delegation by the Legislature of its power of eminent domain to railroad corporations is justified, as a constitutional measure, upon the ground that their franchises are for a public use and that in accommodating the public, by furnishing transportation for passengers and freight, they perform a public duty and are invested with a quasi pub Second Department, December, 1911. [Vol. 147. lic character." (Erie R. R. Co. v. Steward, 170 N. Y. 178, supra.) The same rule must obtain with a company such as a canal company, whose method of transportation is by water instead of by land. It is contrary to the principle underlying the delegation of this legislative power to permit a corporation to exercise the same to accomplish a result which by private contract it is bound to abandon the moment the result is attained, unless, to say the least, the other party to the contract is not only authorized but bound to maintain the completed work as a public use, which the Estates Company is not. It is true that this company has agreed with the town of Hempstead that this waterway when completed shall become the property of the town, and subject to its municipal jurisdiction, the same as other like town property. It is also true that petitioner agreed with the Estates Company that upon the completion of said waterway it would immediately convey, transfer and surrender the same to the town of Hempstead, with all appurtenances thereto, the same to be thereafter held and used by said town of Hempstead and its inhabitants, and the public generally, forever, according to the true intent and meaning of said town contract. But the town has nowhere agreed to maintain this waterway for a public use, and we cannot find, nor has our attention been called to any act by which the town has any statutory duty imposed upon it either to construct or maintain canals, nor is it given the power of eminent domain to enable it to acquire the land necessary for the construction thereof. To state the case most favorably to the petitioner, it is seeking to condemn land to enable it to perform a contract which it has made with a purely private corporation in order to enable the latter in turn to perform a contract which it has made with a municipal corporation to convey to it the property thus acquired. But this property the municipal corporation has no power itself to acquire in the first instance, and when acquired it is under no obligation to maintain it for a public use. The situation is not analogous to that of a railroad corporation which has leased its lines to a similar corporation. A lessor public service corporation may be authorized to acquire land for the benefit of its lessee. (Kip v. New York & Harlem R. R. Co., 67 N. Y. 227; Matter of |