(dissenting.) Upon the ground upon which the decision is put I can not concur with my *504hrethen in sustaining the demurrer to the complaint in this action. It seems to me that it carries the doctrine in respect to voluntary payments to an unreasonable extent. I agree that no recovery can or should be had where payment is freely made; when it is made upon a compromise of a doubtful or disputed claim; or where all defense to such claim is waived or relinquished intentionally or without such compulsion or coercion as amounts to a species of duress of the person or goods. I think the rule in respect to such compulsory payments as constitute an exception to the doctrine in respect to voluntary payments, is correctly settled in Harmony v. Bingham, (2 Kern. 100.)
The rule in respect to what would constitute a voluntary payment, when no recovery could be had for the restoration of money paid, or when the payment would be held compulsory and a recovery allowed, within the case of Harmony v. Bingham, was doubtless understood by the plaintiffs and by the defendants, or by their respective counsel under whose advice they acted, at the time of the payment of the tax in question in this action; and both parties doubtless had that case before them and understood its force, and acted in reference to the rule there laid down.
It is apparent, therefore, that the payment in question was not made or received with intention to waive the right of the plaintiffs to test the legality of the tax in question by subsequent litigation. Both parties clearly understood this, and there can be no pretense that the payment was intended to be a voluntary one, within the rule which forbids a recovery for such payment. The complaint states that the plaintiffs appeared before the assessors and there insisted that they were not liable to be assessed and taxed for the $100,000 of the United States securities, held by them as part of their capital; and that after the assessors had completed their roll, including an assessment for securities, they (the defendants) contested the question before the common council of the city, and opposed the confirmation of such assessment, and *505requested the common council to correct the same. It was after all this had occurred, and when it was obviously well known to the common council of the city that the plaintiffs intended to litigate in the courts the question of their liability to taxation ,on such securities, that the common council passed the resolution referred to, in which they agree that “if the bank will pay their tax of $6194.07, before the time for the issue of the warrant for the collection of city taxes, that such payment shall not be treated or regarded as a voluntary payment, but as a payment under protest, and after the issuing of such warrant and a levy upon its property to enforce such payment.” This resolution was passed July 24, 1860, and four days after—on the 28th—the plaintiffs paid their tax in conformity therewith, and before the issuing of the warrant for its collection; which could not, under the provisions of the charter, issue until after the 15th of December next thereafter. It will thus be seen that the consideration for the passage of such resolution was received as stipulated, and was the payment of the whole tax of the bank, $6,194.07, nearly five months before it could be collected by such a levy under a warrant for the collection thereof, and would unquestionably leave the plaintiffs at liberty to litigate the legality of such tax so far as the question of voluntary payment is concerned. I can not admit that a payment so procured, made and received, can fairly be considered voluntary within the. rule which precludes a recovery for such paymeptsA' . .
The rule that voluntary payments can not bé recovered' is clearly for the sole benefit of the party rec^ivitig^the pqy-, ment, and it can not be doubted that such páijty nrqy \vRiAe the objection, before or after suit brought; andqt'bán not^be;. denied that this resolution does upon its face anticipate' and expressly waive such objection. It stipulates ?iiqt..j.fguedy' payment shall not be treated or regarded as a voluntary payment.” This is an agreement that in any suit or controversy about such tax no such objection shall be taken or made that the same was voluntary. And it says further, that such *506payment shall be treated and regarded as if made upon a levy of the plaintiffs’ property upon a proper warrant to enforce such payment. This is the stipulation, and if binding, it clearly precludes the defendants from urging in any court or place, or mating the objection, that such payment was voluntary. It is a violation of contract and of good faith to make such objection, and I think it is the duty of the court to hold the defendants estopped from so doing in this action. The answer to this view, and which is sanctioned by the opinion of my brother Smith, is that the common council had no power to pass this resolution; that it was entirely unauthorized; and that the plaintiffs must be deemed to know that it was of no validity, and therefore their payment must be regarded as voluntary.
This, I think, is a mistaken view of the question, and of the power of the common council. It is true that the people of the city of Rochester constitute the body politic and corporate of such city; but for all substantial and practical purposes the mayor and aldermen, constituting the common council, are the actual corporation. The common council so composed is the legislative authority of the city, and represent the city, in the same sense that the state legislature represents the state. They are its acting and speaking power, and the only agency or voice by which it acts, speaks and contracts to bind itself or others.
By the express provision of the first section of the charter the inhabitants are incorporated by the name of the city of Rochester, with all the power conferred by the statutes of this state upon corporations, as well as those conferred by the charter itself. By the -fortieth section of the charter it is declared that “The common council shall have the management and control of the fiscal and prudential affairs of said city, and of all property, real and personal, belonging to the city, and may make such orders and by-laws relating to the same as it shall deem proper and necessary.” Here is an *507express power to manage and control the fiscal and prudential affairs of the city. There is a general power, designed to give the common council the amplest incidental power of oversight and control essential to the due exercise of all the special powers conferred by the charter, relating to the financial interests and affairs of the city. Corporations, it is true, and this includes municipal corporations as well as others, can exercise no powers except such as are expressly granted. But every grant of power includes all the legitimate incidents of such power. The common council is authorized to lay and levy taxes and assessments. It makes contracts for public improvements, and for a great variety of work and service for the city. Now as incident to the exercise of all its powers over public works and public affairs, financial questions are constantly arising, as money is to be paid out and expended. The common council has a necessary incidental power over all the questions growing out of the collection and expenditure of the public money. No moneys can be' paid out of the treasury except upon its orders, and its control over the moneys of the city is full and complete for the purpose of executing the powers conferred. It has necessarily power of control and contract over all the disputed questions which arise in the affairs of the city in the collection and disbursement of the public money. It can settle a controversy, or it can litigate disputed questions. It must decide how and in what manner it will settle claims of the city against individuals, and claims of individuals against the city. It can not, of course, lawfully spend money for other than legitimate city purposes and within the limits of the charter. (Hodges v. City of Buffalo, 2 Denio, 110.) But within the range of such limits, it has a large and an unlimited discretion, as the sole legislative power and authority of the city. Here was a controversy with the plaintiffs in respect to the question whether they were liable to be assessed and taxed on $100,000 of United States securities, held by them as part of their capital. It *508was a disputed and disputable question. It must be settled by agreement with the city, or by litigation. It seems to me that the common council had power to decide for the city whether it would compromise this claim or litigate it. The power to decide this question was a proper incidental power, to be exercised under the general power to control the financial affairs of the city.
By section 117 of the charter, the common council was expressly authorized in case any mistake should be made or error committed in any tax or assessment upon any property, real or personal, “to remit such assessment or the tax based thereon if uncollected, and to refund the same if collected.” Under this section^ the common council could have corrected the assessment in question in this action, before the tax was collected, or refunded it after made. If they could do this upon their own conviction that such assessment or tax was erroneously imposed, certainly they could stipulate to submit the question to the court without suit, or to submit, before payment or after payment, without raising any question aside from the merits. And this is what they have agreed. They have stipulated with the plaintiffs to litigate the question in dispute upon the merits without raising the question whether the prepayment of the tax should or should not be regarded as voluntary.
When the common council passed the resolution in question they knew that the plaintiffs claimed that the tax on the §100,000 of United States government securities was illegal, and proposed to contest its legality and to sue for its recovery back; and they passed this resolution in order that the city might immediately receive said tax and the plaintiffs might immediately pay the same, without affecting their rights in such litigation.
When this suit was actually commenced the common council was the only power to defend it. They were under no obligation to violate their resolution and interpose or raise the objection that such payment was voluntary. They were *509not bound to defend at all. They might, if they had become satisfied of the justice of such claim, have acquiesced in it and permitted the plaintiffs to recover the amount claimed, by default. If this be so, and I think there can be no doubt of it, certainly they might say by resolution, in advance of such payment, that they would waive that particular defense that such payment was voluntary, by stipulating as they did that it should not be so regarded or treated.
But to go further; the common council being the only power to determine whether an action—this action—to recover the amount of such tax should be defended or not, it could certainly stipulate for its own action that no such defense, as that such payment was voluntary, should be interposed or made by its authority. The city attorney, by whom the defense in the suit is interposed, is the mere agent of the common council. He is appointed and removed by them, and acts under their authority and control. The resolution in this view binds the common council not to make the defense in question, or authorize or allow it to be interposed. It therefore controls, legally and lawfully, the defense of the action, and the defendants are bound by such stipulation. It merely waives a formality in the prosecution of the suit not connected with or affecting the merits of the question in dispute, and for such stipulation the defendants received a consideration in the prepayment of the tax and the use of the money pending the litigation, which was obviously of some advantage to the city, provided it should ultimately prevail in the action.
The defense or objection to the plaintiffs’ claim to recover the amount of the tax alleged to have been illegally imposed, being thus interposed solely upon the authority and direction of the common council, and for which they alone are responsible, I think we should hold that the common council is the principal in making such defense, and is to be treated and regarded as though it was the corporation in fact, and *510the defendant in the action, and held precluded and estopped from setting up a defense in violation of its express resolution and contract.
But if the common council can not he regarded as the virtual defendant in this action, and the city is not therefore estopped from setting up the defense that the payment in question was voluntary notwithstanding said resolution, then I think the defendant, the city, the body corporate, the whole body of the inhabitants, is bound by its acts as its or their agen'ts acting in their behalf and for their benefit. As such agents they stipulated that if the plaintiffs would pay them the tax before the warrant issued, no such defense as that of a voluntary payment should be made. The plaintiffs paid the tax accordingly into the city treasury. The city has had the money, and received and obtained it four or five months in advance of the time when it could be legally enforced, upon the inducement and representation held out to the plaintiffs in the resolution. The city having thus received the consideration for the agreement, can not be allowed to retain the benefit acquired by its agents and disown and disavow its part of the bargain. The city has kept and retained the money that it obtained upon the faith of such resolution, and is bound by the acts of its agents, as much as an3>- private individual. It can not keep the money and cut off the plaintiffs from the benefit which they expected to receive, and which the defendants’ agents stipulated they should receive for its payment be'fore it was legally due or collectable.
It is well settled that if a person, not duly authorized, makes a contract on behalf of a corporation, and the corporation takes and holds the benefit derived from such contract, it is estopped from denying the authority of the agent. (The Episcopal Charitable Society v. The Episcopal Church, 1 Pick. 372. Hayward v. The Pilgrim Society, 21 id. 270. Randall v. Van Vechten, 19 John. 60. Foster v. Essex *511Bank, 17 Mass. Rep. 500. 1 Parsons’ on Cont. 139.) The demurrer, I think, should be overruled, and the defendants allowed to answer on the usual terms.
[Monroe General Term, June 6, 1864.Judgment for the defendants, on the demurrer.
X. 0. Smith, Welles, and X Darwin Smith, Justices.]