(dissenting). It seems to me that the defendants have waived any objections to the form of the petition or to the qualification of commissioners.
When the petition was presented to the court on May 10, 1937, defendants were represented by counsel who appeared personally, served formal notice of appearance and interposed no objection to the petition or to the commissioners who were then appointed.
On June 11, 1937, the commissioners met. Counsel for defendants was not present, but it appears on the record in the minutes of the commissioners that he stated over the telephone that he was not going to pay any attention to the commission; that he was going to reopen the matter and have a new commission.
Thereafter and on June 15, 1937, the commission again met and defendants’ counsel was not present; the matter was then adjourned for the purpose of issuing a formal notice of hearing. On the adjourned date, June 24, 1937, the commission met and it appeared that notice of hearing had been served upon counsel for defendants, but the hearing was then adjourned by the commission for the purpose of serving formal notice of the hearing upon the defendants.
Later and on July 6,1937, on application of plaintiff, the petition was amended to clarify the description. Counsel for defendants was present and stated that he had no objection to the amended description but that he objected to the appointment of Robert S. Long and Roswell A. Sharron, two of the commissioners, in that they were not disinterestered freeholders as described by section 13 of the Condemnation Law.
On the same day counsel for defendants was present at a meeting of the commission and objected to proceedings of the commission and specifically objected to Robert S. Long sitting as commissioner. The objection was disregarded, he excepted and then took part in the further proceeding.
*461Under the established rule it would seem that it is now too late for defendants to raise the question as to the form of the petition or the qualification of the commissioner. (See Matter of Cooper, 93 N. Y. 507; Russell v. Randall, 123 id. 436; Matter of Board of Supervisors, 57 Misc. 665, opinion by Van Kirk, J.; Matter of Grade Crossing Commissioners, 148 App. Div. 412; County of Orange v. Ellsworth, 98 id. 275.)
On the merits no practical inconvenience will result to the defendants from any so-called defect in the description of their property. The map referred to in the proceedings indicates the location of the property to be acquired and its extent.
Concerning the qualification of the commissioners, there appears to be no statute which expressly disqualified them and no actual bias is shown. The prevailing opinion concedes that there is no question as to the honesty, integrity or good faith of the commissioners. There being no express statutory disqualification and no actual bias, prejudice or interest in the litigation on the part of the commissioners challenged, there appears no valid objection as to their qualification.
It is argued that one of the commissioners in question is a member of the park commission and that the land to be acquired is to be used in connection with park improvement and development. He receives no salary as park commissioner, and I am unable to see why as a practical proposition, he is disqualified any more than a city judge would be in a case in which the city was a party.
For the reasons stated, I think the order and judgment appealed from should be affirmed.
Bliss, J., concurs.
Order reversed on the law and facts, with fifty dollars costs and disbursements to appellants, and the matter remitted to the County Court to the end that a proper petition may be filed and a new hearing directed before new commissioners.