
    Andrew G. Cooper and John Campbell, Appellants, v. The City of Brooklyn, Respondent.
    
      City rates for water — voluntarily paid, cannot be recovered—what %ise of the, water is authorized—ultra vires.
    A municipality is not bound to sell water to persons who intend to resell it to boats and vessels situated anywhere in its harbor.
    Such purchaser of city water, who has paid therefor a price fixed by the Commissioner of City Works of the city, cannot, in an action brought by him to recover part of the money so paid, raise the question as to whether the common council did not exceed its power in giving to the Commissioner of City Works power to fix the price and as to whether such price is not in excess of that which might, under the provisions of law, he charged upon a resident for such use.
    One who thus enters into an unauthorized agreement and enjoys all the benefits of the contract, and voluntarily pays the agreed price, cannot recover it.
    Appeal by the plaintiffs, Andrew G. Cooper and another, from a judgment of the City Court of Brooldyu in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of May, 1896, upon the décision of the court rendered after a trial at a Special Term of said court dismissing the complaint upon the merits.
    
      Albert A. Wray, for the appellants.
    
      Joseph A. Burr, Corporation Counsel, for the respondent.
   Brown, P. J.:

The plaintiffs, between the 31st day of May, 1889, and the 18th day of October, 1894, purchased from the city of Brooklyn 190,282 cubic feet of water, for which they were charged and paid forty-six and one-lialf cents per 100 cubic feet, amounting to $884.81. The complaint alleges that the city had no authority in fact or in law to make any greater charge against the plaintiffs than eleven and one-quarter cents per 100 cubic feet, which would have amounted to the sum of $214.07, and this action is brought to recover the difference between those sums, viz., $670.74.

The plaintiffs, during the period above named, were the owners of a water boat and engaged in the business of selling water to shipping in and about the harbor of New York. By statute applicable to the case (Laws of 1859, chap. 396, § 18) it was made the duty of the common council of the city, upon the recommendation of the commissioner of city works, to establish a scale of water rates in the city called “ regular rents,” and also extra rates to be charged to hotels, manufacturing establishments, steamboats, shipping, etc., and pursuant to such authority and recommendation the common council of the city did, in July, 1886, pass an ordinance wherein the rate to be charged for water used for manufacturing purposes was fixed at seven and one-lialf cents per 100 cubic feet, and for all other purposes at eleven and one-quarter cents per 100 cubic feet.

In October of the same year a further or revised ordinance was adopted by the common council, which was a substantial re-enactment of the ordinance of July, but which provided that All matters not hereinbefore mentioned are reserved for special contracts by and with the Department of City Works.” It was under this latter, ordinance that the charge for water furnished to the plaintiffs Avas made. There is no claim upon the plaintiffs’ part that they were charged more than other persons similarly situated or obtaining water for a like purpose. The contention of the learned counsel for the 'appellants is that the effect of the clause quoted from the ordinance of October, 1886, was to delegate to the commissioner of city works the power conferred by the Legislature upon the common council, and that the ordinance was for that reason void, and being void, the rate fixed by the July ordinance governed the charge for the water furnished to and -used by the plaintiffs. Assuming this contention to be sound, I do not see how it is aArailable to the plaintiffs to sustain a recovery in this action. The water was not furnished to be used by vessels lying at the docks of the city, but was desired and intended to be resold to boats and vessels anywhere in the harbor. These sales might be made by the plaintiffs not only outside the limits of the city, but outside of the State. The plaintiffs Avere not entitled to be furnished with water by the city for such a purpose, and the city could not have been compelled to sell it to them for such a purpose. The charge for the water purchased by them Avas, therefore, in no sense a tax. Assuming that the contract with the plaintiffs Avas ultra vires, the plaintiffs must be deemed to have known the limitations upon the city to contract, .and having entered into an unauthorized agreement and enjoyed all the benefits of the contract, they were clearly liable for the purchase price. (Bath Gas Light Co. v. Claffy, 151 N. Y. 24.)

For like reasons, having ]iaid the purchase price, they cannot iioav repudiate the contract to enable them to recover back the Avliole or any part of the sum paid. The mistake under which the plaintiffs acted is not one of fact but of law. The payments made have been purely voluntary and the money cannot be recovered back. But I do not think the ordinance in question is subject to the criticism made upon it. So far as it may be deemed applicable to the case before us, it committed to the decision of the commissioner of city works the determination of the question whether water should or should not be furnished for the purposes of the plaintiffs’ business, and permitted him, in case he determined to sell it, to make such charge as to him seemed proper. As the city was under no legal obligation to sell water to boats in the harbor, there was no illegality in delegating the entire control of that subject to the commissioner of city works. The charge for the water furnished rested solely in contract, and having been paid and the water used, no liability exists on the part of the city to refund the money.

The judgment must be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  