Hatch v. Wolfe , 1 Abb. Pr. 77 ( 1865 )


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  • 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.

Document Info

Citation Numbers: 1 Abb. Pr. 77

Judges: Daly

Filed Date: 6/15/1865

Precedential Status: Precedential

Modified Date: 2/3/2022