¶1This 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 appeal-able (Dean v. Empire Mut. Ins. Co., 9 How., 69 ; Bryan v. Brennon, 7 Ib., 359 ; Ubsdell v. Root, 7 Hilt., 173).
¶2Even before the Code there might be a reference in an action of covenant, if the examination of a long account were involved (Diedrick v. Richly, 19 Wend., 110; Bloom v. Potter, 9 Wend.,40; Thomas v. Reab, 6 Wend., 50). 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 v. Dodd, 3 E. D. Smith, 348; Kennedy v. Hilton, 1 Hilt., 546).
¶3Defendant’s appeal dismissed.
¶4Brady, J. dissented.