This is not an action for a tort, but for the breach of a covenant to keep the premises which had been demised to the defendant in good and tenantable repair, and "the order directing a reference, upon the ground that it required the examination of a long account, is not an order affecting the merits, or which involves a substantial right, and is not appealable. (Dean agt. Empire Mut. Ins. Co. 9 How. 69 ; Bryan agt. Brennan, 7 Id. 359; Ubsdell agt. Root, 7 Hilton, 173.) Even before the Code there might be a reference in an action of covenant, if the examination of a long account were involved. (Diederich agt. Richly, 19 Wend. 110 ; Bloom agt. Potter, 9 Wend. 410; Thomas agt. Reab, 6 Wend. 503.) And if the action is one in which a reference may be ordered, the order of the judge at the special term upon the question, whether the examination of a long account is or is not involved, is not one which the court will reverse on appeal. (Smith agt. Dodd, 3 E. D. Smith, 348; Kennedy agt. Hilton, 1 Hilton, 546.)
Defendant's appeal dismissed.
Judge Brady dissents.