Where there is no account between the parties, in the ordinary acceptation of that term, the cause cannot be referred, although there may be many items of damage. (Thomas v. Reab, 6 Wend. 503 ; Silmser v. Redfield, 19 id. 21; Dederick v. Richley, id. 108.) If there had been payments in money or other things, and the question was whether any part or how much of the rent was in arrear, there might, perhaps, be a reference. But here the defendants claim nothing in the way of payment; but rest their defence on the ground that they were never liable for the rent which the plaintiffs claim. The cases do not come within the statute.
Although the circuit judge may order a reference with the like effect as if the order was made by this court, it is settled that we may review his decision, and revoke the order. (6 Wend. 503; 25 id. 687.) We could review the' decision if it had been made by ourselves.
Motions granted.