Order and judgment, entered on December 12, 1969 and December 17, 1969, respectively, unanimously modified, on the law, to the extent of granting partial summary judgment to plaintiff in the sum of $534.64, concededly due plaintiff from defendant, and otherwise the judgment and order are reversed, on the law, the motion for summary judgment denied, and the judgment vacated. Defendant-appellant shall recover of plaintiff-respondent $50 costs and disbursements of this appeal. Execution on the partial judgment is stayed pending final resolution of the issues in the action. The contention of plaintiff that claims against it, an interstate carrier, for damages to shipment of goods may not be set off by defendant as a counterclaim, is rejected ( Chicago N.W. Ry. Co. v. Lindell, 281 U.S. 14). The reason underlying such permissive action is clearly set forth in the case cited. "The adjustment of defendant's demand by counterclaim in plaintiff's action rather than by independent suit is favored and encouraged by the law. That practice serves to avoid circuity of action, inconvenience, expense, consumption of the courts' time, and injustice" (p. 17). The purpose of the Hepburn Act (34 Stat. 587; U.S. Code, tit. 49, § 6, subd. [7]) is to prevent discrimination. Carriers "may not accept services, advertising, property or a release of claim for damages in payment for transportation. They are required to collect the established rates, charges and fares from all alike in cash" (p. 17). Determination of claims of shippers for loss or damages in suits by shippers to collect transportation charges is not forbidden by the act.
Concur — Stevens, P.J., Markewich, McNally, Steuer and Tilzer, JJ.