
    THE STATE, RYERSON AND OTHERS, PROSECUTORS, v. THE CITY OF PASSAIC. THE STATE, MERRIAM AND OTHERS, PROSECUTORS, v. THE SAME.
    1. Where an improvement has been completed and paid for, with the knowledge of the prosecutors, and without objection, the court will not entertain objections to proceedings prior to the assessment.
    2. An assessment under the act of March 21st, 1871, amending the charter of the village of Passaic, set aside — 1. Because it did not appear that the commissioners were discreet and impartial persons. 2. Because they failed to estimate and report the value of lands taken, &c., as required by the act.
    3. These errors not within the curative operation of section 84 of the act to incorporate the city of Passaic. (Laws, 1873, p. 516.)
    On certiorari.
    
    Argued at June Term, 1875,
    before Justices Woodhull and Reed.
    For the the prosecutors, Comstock.
    
    For the defendants, Moore.
    
   The opinion of the court was delivered by

Woodhull, J.

The proceedings brought up by these writs, relate to the grading, &c., of the River road, in the village of Passaic. They were commenced, and in legal effect, were carried to completion under the act of March 21st, 1871, amending the charter of the village of Passaic. [Laws, 1873, p. 518, § 92; Laws, 1871, p. 619.)

The ordinance authorizing the improvement was passed March 17th, 1873. The work was completed about May 1st, 1874, was paid for soon after, with the knowledge of the prosecutors, and without objection on their part. The writs were not applied for until the following November. Under such circumstances, for reasons which have been too often stated to need repetition, objections will not be entertained as to any of the proceedings prior to the assessment. State, Ropes, pros., v. Essex Public Road Board, and cases cited, 8 Vroom 335; State, Graham, pros., v. Mayor, &c., of Paterson, Ib. 380; The State, Gobisch, pros., v. Inhabitants of North Bergen, Ib. 402; State, Hoxsey, pros., v. Mayor, &c., of Paterson, Ib. 409.

The assessment was made by three commissioners appointed by the city council of the city of Passaic, in August, 1873, the act incorporating the said city having gone into effect April 2d, in the same year.

The authority for the appointment of these commissioners is found in section 19 of the act of 1871, {Laws, 1871, p. 632,) which provides that three discreet, impartial and disinterested persons, freeholders and residents, &c., shall be appointed, &c.

It sufficiently appears that the commissioners in this case were freeholders and residents of the city, and that they were not interested in the improvement.

But it does not appear that they were, either in the judgment of the city council or in fact, discreet and impartial persons.

In failing to show this affirmatively, these proceedings are fatally defective. State v. Jersey City, 1 Dutcher 309; State v. Newark, Ib. 399 ; State, Little, pros., v. Newark, 7 Vroom 170.

The same section which prescribes the qualifications of the commissioners, provides that they shall estimate and report the value of lands taken, &c., and shall report to whom the lands so taken belong, and the interest and estate of the several owners in the same, as far as practicable, &c.

The testimony in the case shows that lands were taken for the improvement, but the report filed by the commissioners does not embrace any of the particulars just stated, and is for that reason essentially wrong.

Section 84 of the act to incorporate the city of Passaic, {Laws, 1873, p. 516,) which declares certain assessments made under the acts of 1869 and 1871 to be valid, &c., was not intended to supply jurisdictional facts, nor to validate proceedings which appear to the court to be fundamentally vicious. State, Copeland, pros., v. Village of Passaic, 7 Vroom 382.

The errors in these proceedings are not within the curative operation of that section.

The assessment and all proceedings thereunder, must, as to-the prosecutors, be set aside.  