
    TRAYFORD v. BALL.
    Civil Action No. 3685.
    District Court, W. D. New York.
    March 17, 1948.
    James F. Kelly, of Buffalo, N. Y., for plaintiff.
    George L. McKnight, of Buffalo, N. Y., for defendant.
   KNIGHT, District Judge.

The suit herein its unusual. It has been brought by the tenant rather than the Federal Housing Expediter.

This is a motion for summary judgment, and also for allowance of counsel fee. The only matter to be considered, as it appears to me, is whether the denial of wilful violation of an order raises an issue. Plaintiff’s counsel asserts that the defendant has not pleaded want of wilfulness. This seems not to be the fact.

The conclusion is that the summary judgment must be denied unless the plaintiff consents to the recovery of $120 on account of excessive rent and $60 counsel fee and costs, in which case summary judgment is granted in the amount of $180 and costs.  