
    Fourth Department,
    December, 1917.
    Hiram B. Parish, Appellant, v. John J. Neil, Respondent.
    
      Replevin — constructive possession — appeal.
    
    Appeal from a judgment and order of the Yates County Court, entered August 6, 1917, reversing a judgment of a justice of the peace in favor of the plaintiff in an action on replevin.
   Per Curiam:

It does not appear that in the first replevin action plaintiff gave the required undertaking for the return of the chattel, nor does it appear that the judgment dismissing that action awarded possession or directed the return of the chattel to defendant. There is, therefore, no ground for sustaining the contention of plaintiff’s counsel that defendant had constructive possession at the time the present action was begun. On this record it must be held that plaintiff had actual' possession of the chattel at the time he began this action, and that it does not appear that defendant was then claiming a right to possession. The form of the notice of appeal to the County Court permitted a review of the whole judgment and did not limit the appeal to the award of costs. The judgment of the County Court should be affirmed, with costs. All concurred. Judgment and order affirmed, with costs.  