(assigned) (dissenting). If the judge of the Superior Court who made the order sought to be reviewed was acting as a legislative or statutory agent, then Bergen County Sewer Authority v. Borough of Little Ferry, 5 N. J. 548, 76 A.2d 680 (1950), is conclusive. In this situation review would have to be by proceeding in lieu of certiorari and not by appeal and, consequently, the motion of *98the Turnpike Authority would have to be granted. However, I cannot agree that such is the case.
It appears here that following their appointment, in the making of which the judge acted as a legislative agent (Bergen County Sewer Authority v. Borough of Little Ferry, supra), the commissioners conducted hearings, reached their conclusion as to the value of the land taken and filed their report. Thereafter the landowners made an application to the same judge for an order directing the commissioners to reconsider the report so that it could be amended to include an element of damage relating to the cost of construction of a certain access road, which, the landowners claim, the commissioners omitted because of an understanding by them that the authority intended to provide such a road. This motion was made by virtue of section 31 of the act under which these proceedings were instituted (R. S. 20:1-31). It provides that:
“The justice of the supreme court or judge of the circuit court, upon any hearing before an appeal to a circuit court is filed, and the circuit court thereafter, shall make such further orders and direct such further proceedings and permit such amendments of the description, proceedings and plans as may appear reasonable or as may promote the public purposes for which the power to condemn was conferred or the fab- trial of the issue on the'merits.” (Italics mine.)
In my judgment, in determining the problem presented under this section the judge of the Superior Court was not acting pro hac vice as a statutory agent and performing an almost ministerial duty, as in the case of the appointment of commissioners (Morris & Essex Railroad Co. v. Hudson Tunnel Railroad Co., 38 N. J. L. 548 (E. & A. 1876)). He was dealing with a matter relating to the "fair trial of the issue on the merits,” in his judicial capacity as a judge of the court (In the matter of extending Canal and widening Walker Streets, 12 N. Y. 406, 411 (Ct. App. 1855); In the matter of application of Mayor, etc., of New York relative to the widening and straightening of Broadway, 49 N. Y. 150 (Ct. App. 1872); Matter of New York Central Hudson *99River Railroad Co. to appraise lands, 64 N. Y. 60 (Ct. App. 1876)), and thus functioning in a statutory proceeding in the Superior Court.
Rule 3:81-7 prescribes that “review of statutory proceedings in the Superior Court * * * shall be by appeal to the Appellate Division.” Consideration of the factors which must have fathered this rule impel the conclusion that it ought to be most liberally construed and applied. These factors could not be presented more appropriately than by the effect of the dismissal of the appeal in the present case. If the judge here was functioning as -a legislative agent in making the order appealed from, according to the Bergen County Sevjer Authority case, supra, review thereof must be by a proceeding in lieu of certiorari. This would create an anomalous situation. He is the assignment judge and the only Superior Court judge sitting in the particular county. Such a review, therefore, in the course of normal procedure would be prosecuted before him. Unless he disqualified himself or by some other means it was made possible for another Superior Court judge to hear the matter, such review might well be pro forma and merely represent a requisite but unproductive step for landowners in order ultimately to obtain a hearing by an independent tribunal.
Even if the order in question had been made in a county where two or more Superior Court judges sit regularly in the Law Division, the difference is merely in degree of anomaly. In such a county it would be expected that the review by proceeding in lieu of certiorari would be brought on before a judge other than the one who made the disputed order. However, such judge would be functioning at the same level of adjudication, a condition which seems incompatible with our present modern judicial system.
These considerations lead me to the view that the appeal should not be dismissed.