American Airlines, Inc. v. Aircraft Parts Corp. , 51 A.D.2d 1032 ( 1976 )

In an action to recover for freight services and C.O.D. charges, plaintiff appeals from so much of an order of the Supreme Court, Nassau County, dated July 14, 1975, as, upon renewal of a prior order of the same court, dated March 24, 1975, adhered to that portion of the order which denied plaintiff’s motion to dismiss defendant’s counterclaim. Order affirmed insofar as appealed from, with $50 costs and disbursements. Plaintiff’s C.A.B. tariff, which provides that "No claim with respect to a shipment, any part of which is received by the consignee, will be entertained until all transportation charges have been paid”, is binding upon both the carrier and the shipper (see Bruce Glen, Inc. v Emery Air Frgt. Corp., 24 AD2d 145). The C.O.D. obligation, however, is outside the scope of the public carrier’s public transportation service. A carrier, in receiving merchandise on a C.O.D. basis, acts as a bailee to transfer goods to the consignee and as an agent to collect the price (see Charting v Riddle Aviation Co., 203 Misc 844). Thus, since C.O.D. charges are not included within transportation costs, defendant may interpose its counterclaim for damages incurred because of the late delivery of freight. Gulotta, P. J., Martuscello, Latham, Margett and Shapiro, JJ., concur.