
    John G. Avery, Resp’t, v. The New York Central and Hudson River R. R. Co., App’lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed July 13, 1888.)
    
    Pleading—Complaint—Sueeiency op—Allegation oe greater injury INCLUDES LESSER.
    In an action for damages caused by defendant’s maintaining a fence, along a twenty foot strip of land opposite the Exchange Hotel and so neglecting to maintain an opening for the convenient access of passengers and their baggage to and from the premises as they had agreed and were bound to do by the terms of a certain deed, Held, that the fact that the complaint alleged that the plaintiff’s damage was caused by the defendant maintaining a fence along the twenty foot strip does not affect the plaintiff’s right to recover under his pleading, so long as it includes the space mentioned in the deed which was to be kept open; that the greater includes the less; that it was of no consequence so far as the question of damages for not maintaining the opening was concerned, that the plaintiff had alleged that the defendant had utterly failed to comply with its agreement and had built a fence the entire length of the twenty foot strip.
    
      Hopkins & White, for resp’t; McMillan, Gluck & Pooley.. for app’lt.
   Titus, J.

Each of the judges of this court has been heretofore called upon to pass upon the principal questions raised-on this appeal. We do not consider it necessary now to reiterate the reasons which seem to us sufficient to enable the plaintiff to maintain this action. We think that the request of the defendant to direct a verdict in its favor on the trial was properly denied by the trial court, and that no amendment to the plaintiff’s complaint was necessary to entitle him to recover. The gist of the plaintiff’s cause of action is the neglect of the defendant in not maintaining an opening on the twenty foot strip of land opposite the Exchange Hotel, for the convenient access of passengers and their baggage to and from the premises, as by the deed of conveyance from James S. Wadsworth to the New York Central Railroad Company, made in 1857, it had agreed and was required to do.

The court of appeals has held in one of the cases heretofore tried in this court, “that, while the defendant had a right to build a fence along this twenty-foot strip, still it was required to maintain an opening on to this strip of a size reasonable, proper and fit, opposite the hotel, and large enough for the convenient access of passengers and their baggage to and from said strip, and which should be at no time closed against them.” Avery v. New York Central and Hudson River R. R. Co., 106 N. Y., 142; 8 N. Y. State Rep., 612.

The fact that the' complaint alleges that the plaintiff’s damage was caused by the defendant maintaining a fence along the twenty-foot strip, cannot affect the plaintiff’s right to recover under his pleading, so long as it includes the space mentioned in the deed, which was to be kept open. The greater includes the less. If the defendant had maintained an opening, such as by the deeds of conveyance it was required to do. then the plaintiff could not recover. It is for the neglect of the defendant to keep and maintain such an opening on to the twenty-foot strip that the plaintiff can maintain his action, and it is of no consequence, so far as this question is concerned, that the plaintiff has alleged in his complaint that the defendant had utterly failed to comply with its agreement, and had built a fence the entire length of the twenty-foot strip. The jury were properly instructed as to the rights of the parties, that if the defendant maintained an opening, as by the deed it was required to do, the plaintiff could not recover, although it had built and maintained a fence along the twenty-foot strip. The plaintiff perhaps might have more particularly indicated wherein the defendant had failed to comply with the agreements in the deed; but, if the defendant desired more specific information in that particular, he should have made application to the court to make the complaint more specific, and, as he has not done so, and as the complaint does allege a breach of the covenant, it is too late for the defendant to complain. We' cannot see that any error was committed by the trial court, either on the rulings on the trial or in the requests to charge. The order appealed from must, therefore, be affirmed, with costs.

Beckwith, Ch. J., concurs; Hatch, J., not sitting.  