
    HATCH against WOLFE.
    
      New York Common Pleas ;
    
    
      General Term, June, 1865.
    Covenant.—Cause of Action.—Reference.—Appealable Order.
    An action, brought against an out going lessee, to recover the amount laid out in putting a house in repair under a covenant on his part in the lease to leave*the premises in good order, is. an action upon the covenant and ' not an action in tort.
    Where such an action involves the examination of a long account it may be referred.
    An order directing a reference in such a case is not appealable.
    
      Appeal from an order of reference.
    The defendant, Bernard' Wolfe, hired a dwelling house of the plaintiff, covenanting to leave the premises in good order at the end of. the term, ordinary wear and tear excepted. He left it in had order; the plaintiff, RoswellD. Hatch,.Recr., &c., had it put in a tenantable condition, and brought suit to recover the amount so laid out. On joining issue, plaintiff moved for- a reference, alleging that the examination of a long account would be necessary—this being granted, the defendant appealed from the order to the Greneral Term.
    
      Wm. H. Newman and D. M. Porter, for the appellants.—
    I. The action cannot be maintained except as an action for damages. It is not an action for an accounting, neither is it an action On an account. The plaintiff’s cause of action, is for a wrong (a misfeasance or negligence in permitting the property to be destroyed). Such an action is not referable, although it may he necessary to examine a large number of items constituting the plaintiff’s claims for damages (McMaster v. Booth, 4 How. Pr., 427). Where there is no account in the ordinary sense of the term, the cause cannot be referred (Van Rensselaer v. Jewett, 6 Hill, 373). The defendant, as has been said, is sought to be charged for wrongfully permitting the property to be destroyed. Actions for torts are not referable (19 Wend., 108).
    II. An account in the ordinary acceptation of the word can alone be compulsorily referred (M’Cullough v. Brodie, 13 How. Pr., 346 ; Cameron v. Freeman, 18 Id., 310).
    Can these items of damage in this action be held to be an account in the ordinary sense of the word ?
    An account in the ordinary sense of the word implies a contract between the parties relating to the particular demand and out of which it, arises; here the plaintiff has gone on, and made what he alleges to be certain repairs and improvements because, of the defendant’s alleged negligence without the knowledge or consent of the defendant. Can such a statement constitute an account; if so, an assault and battery could do so, and the plaintiff make up a long bill of particulars for so many buttons destroyed, repairing pantaloons, and. so on, by reason of the assault, &c., and get a reference.
    
      III. A difficult question of law is sworn to by the defendant' and specified in his affidavit, Code 271.
    IV. The answer denies the defendant’s liability (Van Rensselaer v. Jewett, ubi supra).
    
    V. There is no account between the parties, but merely alleged items laid out to repair the effects of the defendant’s carelessness and negligence. The right of trial by jury should be held inviolate, and there are espécial reasons why this is a cause for a jury.
    
      Roswell D. Hatch, for respondents.
    I. An order of reference is not appealable (Gray v. Fox, 1 Code R., N.S., 334; Bryan v. Brennon, 7 How. Pr., 359 ; Dean v. Empire Ins. Co., 9 Ib., 69; Tallman v. Hinman, 10 Ib., 89; Ubsdell v. Root, 1 Hilt., 173; Baker v. Nausman, 1 Hilt., 546; Conlan v. Latting, [Woodruff, J.], 3 E. D. Smith, 353).
    II. Under the broad provision. of the Code (§ 271), a reference may be ordered in any action if the trial will require the examination of a long account.
    The Code is broader than the Revised Statutes. By the 1 after the Court could only refer where the action was “ founded on contract (2 Rev. Stat., Vol. 2, p. 480, 3d Edition).
    Under the Code, there is no restriction, and any action, even one founded on fraud, may be referred (Sheldon v. Wood, 3 Sand., 739). On a motion for a provisional remedy, the Court may direct a reference, to hear and decide the issues in the action (Jackson v. De Forest, 14 How. Pr., 81). A reference can be compelled where the Court can see that the trial must necessarily involve the examination of a long account (Keeler v. Pough. Pl. R., 10 How. Pr., 11; Sheldon v. Weeks, 7 N. Y. Leg. Obs., 57 ; Conlan v. Latting, 3 E. D. Smith, 353 ; Bowman v. Sheldon, 1 Duer, 607: Masterton, v. Howell, 10 Abb. Pr., 118 ; Mills v. Thursby, 11 How. Pr., 113).
    In an equitable action to set aside a conveyance on ground of fraud, the Court in its discretion ordered the issue to be tried by a referee where the Circuit Calendar was crowded (M’Mahon v. Allen, 10 How. Pr., 384). The question whether the trial of an issue of fact will require the examination of a long account is a question to be determined summarily upon application to refer (Dean v. Empire Mut. Ins. Co., 9 How. Pr., 69). The allegation in the moving affidavit, made by the attorney, that the trial would necessarily involve the examination of a long account, is sufficient to authorize the Court to order a reference, and such order is not appealable (Ibid).
    
    III. The authorities cited from, Wendell by the appellant were before the Code and under the Revised Statutes, and not applicable to the present system.
    IY. There are 46 items, separate and distinct, different bills, paid to various mechanics in putting the premises in order. It would be impossible for a jury to recollect them, unless by taking notes of reference.-
   By the Court.—Daly, F. J.

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 appeal-able (Dean v. Empire Mut. Ins. Co., 9 How., 69 ; Bryan v. Brennon, 7 Ib., 359 ; Ubsdell v. Root, 7 Hilt., 173).

Even 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).

Defendant’s appeal dismissed.

Brady, J. dissented.  