dissenting: I respectfully dissent to the majority opinion. In my view, when the pleadings were completed and the cause initially went to trial, three distinct claims were presented to the court: Plaintiff’s claim against defendant Richardson; defendant Richardson’s counterclaim and cross action against plaintiff and defendant city; and defendant city’s counterclaim against defendant Richardson.
*271When the jury in the initial trial answered issues that plaintiff and defendant Richardson were both negligent, and the trial court entered judgment that no party should recover on his or its claim, all three parties were aggrieved and had a right to appeal to the Court of Appeals. Plaintiff and defendant city saw fit to exercise that right. Defendant Richardson, in effect, said that he was satisfied with the judgment allowing him no recovery on. his claim and did not appeal. This court awarded “appellants” (plaintiff and defendant city) a new trial, and, in my opinion, that disposition granted plaintiff and defendant city a new trial on their claims but did not grant defendant Richardson a new trial on his claim.
In .the 1970 Pocket Parts to McIntosh, North Carolina Practice and Procedure, § 1800, p. 119, it is said: “Ordinarily the appellate court will not render a decision which directly benefits a party who, though entitled to appeal, did not, even though this may leave.the case in an awkward posture. . . .”
In 5 Am. Jur. 2d, Appeal and Error, § 707, it is said:
While an appellee who has not cross appealed may argue in the appellate court in support of the decision appealed from, and in opposition to a claim of error in the court below raised by the appellant, it is settled that ordinarily an appellee who did not file a cross appeal is not entitled to an appellate review to obtain a decision more favorable to him than that appealed from by the other party, . . . The claim of one who took no appeal from a decision adverse to him is not before the appellate court upon appeal by another party not in privity with him, even where the other party has a practical interest in sustaining thé claim of the nonappealing party. Unless the decision below is reversed in favor of the appellant, it must on appeal stand even though it is not as favorable to the appellee as the evidence would have warranted, and where the decision of the court below was in part favorable and in part unfavorable to each of the adverse parties, it can be reviewed for the benefit of each party only if each party has attacked it by either appeal or cross appeal.
See also Gower v. Ins. Co., 281 N.C. 577, 189 S.E. 2d 165 (1972); Pinnix v. Griffin, 221 N.C. 348, 20 S.E. 2d 366 (1942) ; *272and Manufacturing Co. v. Moore, 144 N.C. 527, 57 S.E. 213 (1907).
In my opinion, the trial judge ruled correctly in the retrial of the cause and I vote to affirm.