and plaintiff had prevailed on summary judgment) (quoting Collins v. Toombs, 271 A.D. 160, 63 N.Y.S.2d 545, 546 (3d Dep't 1946)); accord Greiss v. Feldman, 228 N.Y.S.2d 381, 382 (Sup. Ct. Nassau Cnty. 1962); see also Vizzi v. Town of Islip, 71 Misc.2d 483, 336 N.Y.S.2d 520, 522 (Sup. Ct. Nassau Cnty. 1972) (“summary judgment is not a trial” within meaning of CPLR venue provision); Wrobel v. Call, 142 Misc. 610, 255 N.Y.S. 258 (Sup. Ct. Montgomery Cnty. 1932) (denying application for trial fee made by plaintiff who won on summary judgment; “[m]anifestly a trial contemplates something more than a mere inspection of pleadings and affidavits in order to ascertain if a genuine issue is presented”)
Otteman v. Interstate Fire and Casualty Company (1960), 171 Neb. 148, 105 N.W.2d 583; Counne v. Saffan (1956), Fla., 87 So.2d 586; Healy v. Metropolitan Utilities Dist. (1954), 158 Neb. 151, 62 N.W.2d 543; Weisberg v. Perl (1954), Fla., 73 So.2d 56, ( Weisberg case overruled on issue not relevant here in Floyd v. State (1962), Fla., 139 So.2d 873.) Collins v. Toombs (1946), 271 App. Div. 160, 63 N.Y.S.2d 545; Wrobel v. Call et al. (1932), 142 Misc. Rep. 610, 255 N YS. 258. The only federal court decisions on point which have come to my attention also hold that summary judgment is not a trial.
When there is such an issue defendant has the constitutional right to have it tried by a jury. Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523; Dwan v. Massarene, 199 App. Div. 872, 192 N.Y. S. 577; Wrobel v. Call, 142 Misc. 610, 255 N.Y. S. 258; Piedmont Hotel Co. v. A. E. Nettleton Co., 263 N.Y. 25, 188 N.E. 145; People's Wayne County Bank v. Harvey, 268 Mich. 47, 255 N.W. 436; and Gliwa v. Washington Polish Loan Building Ass'n, 310 Ill. App. 465. The proceeding under the statute and the rule is in the nature of an inquisition to determine whether there is an issue of fact to be tried.
I hold that there has not been a "trial of an issue of fact" herein, and the item of $30 is disallowed (cf. Gallagher v. Surpless, 177 A.D. 793, and Harris v. Pudney, 93 Misc. 470; see, also, Wrobel v. Call, 142 Misc. 610). The motion is therefore granted, the item of $30 is stricken from the bill of costs, and the clerk of the court is directed to make an appropriate entry to that effect.
I hold that there has not been a "trial of an issue of fact" herein, and the item of $30 is disallowed (cf. Gallagher v. Surpless, 177 App. Div. 793, and Harris v. Pudney, 93 Misc. 470; see, also, Wrobel v. Call, 142 Misc. 610). The motion is therefore granted, the item of $30 is stricken from the bill of costs, and the clerk of the court is directed to make an appropriate entry to that effect.