
    James Talcott, Inc., Appellant, v. Arnold Schildhaus, Respondent.
   Order denying plaintiff’s motion for summary judgment unanimously reversed and the motion granted, with $20 costs and disbursements to the appellant. There are no issues of fact to be tried. The second award in arbitration stands confirmed and unreversed. It therefore has final effect. The motion to dismiss the appeal for untimely filing of the notice of appeal is denied. Appellant did not cause the order appealed from to be entered and hence the time runs from when the order was served, with notice of entry by appellant, namely, on August 2, 1955. (Civ. Prac. Act, § 612.) In any event, this court has power to relieve appellant of the irregularity of late filing, if there had been such, so long as the notice was duly and timely served (Civ. Prac. Act, § 107). However, the affidavit proof is limited by the pleadings in their present form. Plaintiff may not rely on the old judgment, which was vacated. The new judgment based on the second arbitration award is not pleaded. Hence, plaintiff may not recover the arbitration fee of $400, but is entitled to a judgment in the principal sum of $5,027.21, based on the matters properly pleaded and properly averred in the affidavits. Settle order on notice. Concur — Peck, P. J., Breitel, Botein, Rabin and Cox, JJ.  