
    Fourth Department,
    March, 1915.
    Atlanta Machine Works, Appellant, v. Edward G. Felthousen, Respondent.
    Appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 33d day of March, 1914, upon the verdict of a jury directed by the court for the sum of $3,783.46 damages and costs, and that the defendant have judgment against the plaintiff upon the issues; also from an order entered in said clerk’s office on the 13th day of March, 1914, denying plaintiff’s motion for a‘ new trial.
   Per Curiam:

The plaintiff seeks to recover damages for the defendant’s failure to make and furnish steel castings of a certain kind and tensile strength, plaintiff contending that such as were furnished were not up to the requirements of the contract, and returned them. The defendant contends to the contrary, and seeks to recover the contract price. A verdict was directed for the defendant for the full amount claimed and interest. We are of the opinion that upon the evidence questions of fact were presented which should have been submitted to the jury, namely: 1. Whether the castings were up to the requirements of the contract; 2. And, if not, whether the plaintiff accepted the same so as to preclude it from returning them. The plaintiff contends that the castings were not of steel, and did not have the tensile strength required by the contract; that it had no knowledge of such deficiencies when it received the eastings, and did not learn of such deficiencies until some time thereafter. If the plaintiff acted with reasonable promptness and diligence in ascertaining these deficiencies, and the eastings were in fact deficient, and notice of its refusal to accept the same given within a reasonable time to the defendant, the plaintiff made out its case for the recovery of such damages as it had sustained resulting from the breach of the contract. We are of the opinion that these were questions of fact under the evidence, and should have been submitted to the jury. (Tompkins v. Lamb, 121 App. Div. 366; Wegner Machine Co. v. Taylor, 143 id. 704.) The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.  