The law by which the Harbor Commissioners are authorized to collect dockage, etc., imposes upon them the duty of dredging the docks. This is a condition precedent to the right of collecting dockage; and the Harbor Commissioners can therefore have no such right. The lease expressly stipulates that the dredging shall be done by the defendant. Whyshould this clause have been inserted, if the contracting parties did not contemplate the collection of dockage by the defendant? That such was the intention of the parties, is shown by the fact that the Harbor Commissioners, for over five years, never claimed such a right.
JUDGES: Department No. 2, Myrick, J. Thornton, P. J., and Sharpstein, J., concurred.
OPINION
MYRICK, Judge
During the continuance of the lease set forth in the transcript, the defendant has the legal right to retain the moneys received by it on account of the vessel Mariano, whether it be called dockage, or a collection for a share of the expense of dredging. We do not mean to say that defendant has a legal right to collect dockage as dockage rates or tolls, but by virtue of contract with vessels doing business with it. The plaintiff has not the legal right to collect dockage for vessels landing at the premises leased, provided the vessels be engaged in the business of defendant. Dockage is collected to assist in the expense of dredging; and by the terms of the lease, defendant is to do all the dredging free of expense to the State. It has the right to require that vessels doing business with it shall share in that expense.
Judgment affirmed.