Dr. Green might argue that, to the extent that liability is premised on the latter basis, a new trial is required for him because of our determination that those activities were not shown to have proximately caused Hegger's death. But it is not for us to raise those doubts when Dr. Green has not done so. Ordinarily, a nonappealing party will not benefit from a reversal or modification of a judgment in favor of an appealing party unless the reversal "wipes out all basis for recovery against a non-appealing, as well as against an appealing, defendant . . . ," In re Barnett, 124 F.2d 1005, 1009 (2d Cir. 1942); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 742-45 (5th Cir. 1980); Statella v. Robert Chuckrow Construction Co., 28 A.D.2d 669, 670, 281 N.Y.S.2d 215 (1st Dep't 1967); or unless failure to reverse with respect to the nonappealing party will frustrate the execution of the judgment in favor of the successful appellant, In re Barnett, supra, 124 F.2d at 1008-12. See 9 J. Moore, Federal Practice ¶ 204.
State courts frequently exercise the power to modify personal injury awards. See, e. g., Sinkhorn v. Meredith, 466 S.W.2d 927 (Ark. 1971) ($2500 to $1500); Tills v. Elmbrook Memorial Hospital, Inc., 48 Wis.2d 665, 180 N.W.2d 699 (1970) ($35,000 to $25,000 for personal injuries); Engman v. City of Des Moines, 255 Iowa 1039, 125 N.W.2d 235 (1963) ($25,000 to $19,000); Ardoin v. McComb, 251 So.2d 84 (La.Ct.App. 3d Cir. 1971) ($4500 to $2000); Riolo v. Liebman Bathroom Specialties, Inc., 31 A.D.2d 633, 295 N.Y.S.2d 962 (2d Dep't 1968), aff'd mem., 25 N.Y.2d 918, 304 N.Y.S.2d 852, 252 N.E.2d 284 (1969) ($62,000 to $45,000); Statella v. Robert Chuckrow Constr. Co., 28 A.D.2d 669, 281 N.Y.S.2d 215 (1st Dep't 1967) ($15,000 to $5,000); Richoux v. Grain Dealers Mut. Ins. Co., 175 So.2d 883 (La.Ct.App. 3d Cir.), writ refused, 248 La. 366, 178 So.2d 656 (1965) ($5,622.25 to $4,574.06 with respect to one plaintiff, $20,738.25 to $10,738.
A verdict for $15,000 for conscious pain and suffering was held on appeal to be excessive and was reduced to $10,000. See also Riolo v. Liebman Bathroom Specialties, Inc., 31 A.D.2d 633, 295 N.Y.S.2d 962 (1968), appeal dismissed, 24 N.Y.2d 821, 300 N.Y.S.2d 597, 248 N.E.2d 450 (1969) ($7600 reduced to $5000); Statella v. Robert Chuckrow Construction Co., 28 A.D.2d 669, 281 N.Y.S.2d 215 (1967) ($15,000 grossly excessive, reduced to $5000); Maloney v. Scarfone, 25 A.D.2d 630, 267 N.Y.S.2d 929 (1966) (nothing over $5000 acceptable); Rizzo v. Long Island R.R., 23 A.D.2d 762, 258 N.Y.S.2d 576 (1965) (train collision, $10,000 reduced to $3500); Lates v. Health Insurance Plan of Greater New York, 19 A.D.2d 629, 241 N.Y.S.2d 17, aff'd 13 N.Y.2d 920, 244 N.Y.S.2d 68, 193 N.E.2d 893 (1963) ($22,000 reduced to $5000); Murdrick v. Shotwell, 18 A.D.2d 694, 236 N.Y.S.2d 87 (1962) ($5000 reduced to $2500); Josephson v. Wibrew, 15 A.D.2d 533, 222 N.Y.S.2d 739, aff'd 12 N.Y.2d 930, 238 N.Y.S.2d 315, 188 N.E.2d 526 (1963) ($34,000 reduced to $14,000); Zalewitz v. Greifinger, 14 A.D.2d 750, 220 N.Y.S.2d 467 (1961) ($20,000 reduced to $10,000); Comerford v. Greater New York Councils — Boy Scouts of America, 10 A.D.2d 683, 200 N.Y.S.2d 90 (1960) (retrial ordered on other grounds, youth died in fire, $10,000 excessive); and Kimmel v. Solow, 10 A.D.2d 855, 199 N.Y.S.2d 375 (1960) ($5000 upheld)
It has been proposed that the clause "as to any party" vests the Appellate Division with discretionary power to grant relief to a nonappealing party who appears before the court as a respondent. The Appellate Division in the past has claimed this power and applied it on a number of occasions (see, e.g., Halftown v Triple D Leasing Corp., 89 A.D.2d 794; Monahan v Fiore, 76 A.D.2d 884; Foley v Roche, 68 A.D.2d 558; Statella v Chuckrow Constr. Co., 28 A.D.2d 669; Rome Cable Corp. v Tanney, 21 A.D.2d 342). This court now holds that neither CPLR 5522 nor any other statutory or constitutional authority permits an appellate court to exercise any general discretionary power to grant relief to a nonappealing party.
Houck, Esq., of Florence, for Appellant, cites: As to the Trial Court's erring in failing to grant Appellant'smotion for a new trial after granting motion for ajudgment N.O.V. for the South Carolina State HighwayDepartment: 120 S.C. 511, 113 S.E. 332; 24 A.L.R. 128; 94 S.C. 189, 77 S.E. 857; 113 S.C. 522, 101 S.E. 856; 130 S.C. 533, 126 S.E. 653; 261 S.C. 334, 200 S.E.2d 71; Circuit Court Rule 79. Messrs. Robert L. Kilgo, of Darlington, and J. FranklinSpears, of Lamar, for Respondent, cite: As to the TrialCourt's properly refusing to grant Appellant's motion fora new trial after granting motion for a judgment N.O.V.for the South Carolina State Highway Department: 258 S.C. 331, 188 S.E.2d 785; 5 Am. Jur.2d Appeal and Error, Sec. 950; 94 S.C. 189, 77 S.E. 857; 120 S.C. 511, 113 S.E. 332, 24 A.L.R. 128; 172 U.S. 534, 19 Sup. Ct. 136; 155 U.S. 333, 15 Sup. Ct. 136; 113 S.C. 522, 101 S.E. 856; 130 S.C. 533, 126 S.E. 653; 261 S.C. 334, 200 S.E.2d 71; Annotation 143 A.L.R. 7; 196 S.E.2d 318; 281 N.Y.S.2d 215, 28 A.D.2d 669; 257 So.2d 340; 186 S.C. 285, 195 S.E. 847; 223 F. Supp. 55; 249 S.C. 592, 155 S.E.2d 591. February 5, 1975.
Although only the city prosecuted an appeal, the whole of the judgment is before us (CPLR 5501) and our disposition necessarily effects a dismissal as to the garage defendant as well. (Cf. Arnold v. District Council No. 9, Int. Brotherhood of Painters Allied Trades, 61 A.D.2d 748, 749; Statella v. Chuckrow Constr. Co., 28 A.D.2d 669; Boice v. Jones, 106 App. Div. 547, 548; CPLR 5520; compare Segar v. Youngs, 45 N.Y.2d 568, 572-573; 7 Weinstein-Korn-Miller, N.Y. Civ Prac, pars 5522.07, 5522.03.) The motion, submitted in conjunction with this appeal, is dismissed as moot in light of our disposition of the appeal.
This court affirmed ( 76 A.D.2d 884), stating: "Although the appeal of the Klosowskis from the prior restoral order was dismissed, substantial justice clearly requires that our reversal of said order and denial of plaintiffs' motion inure, as well, to the benefit of these 'nonappealing' codefendants. Only in this way can defendant Fiore, the successful party on the prior appeal, be accorded complete relief without, at the same time, nullifying the rights of his codefendants to contribution from him via impleader (see CPLR 5522; cf. Statella v. Chuckrow Constr. Co., 28 A.D.2d 669; Rome Cable Corp. v. Tanney, 21 A.D.2d 342; 5 Am Jur 2d, Appeal and Error, § 949; 4 N.Y. Jur 2d, Appellate Review, § 488)." Similarly, in Paper Serv. Co. v. Industrial Paper Co. ( 200 App. Div. 593), only defendant appealed from so much of an order as, upon directing a reference, also directed each party to post a bond that if it was unsuccessful on the hearing it would pay the referee's costs and expenses.
Although the appeal of the Klosowskis from the prior restoral order was dismissed, substantial justice clearly requires that our reversal of said order and denial of plaintiffs' motion inure, as well, to the benefit of these "nonappealing" codefendants. Only in this way can defendant Fiore, the successful party on the prior appeal, be accorded complete relief without, at the same time, nullifying the rights of his codefendants to contribution from him via impleader (see CPLR 5522; cf. Statella v. Chuckrow Constr. Co., 28 A.D.2d 669; Rome Cable Corp. v. Tanney, 21 A.D.2d 342; 5 Am Jur 2d, Appeal and Error, § 949; 4 N.Y. Jur 2d, Appellate Review, § 488). Mangano, J.P., Gibbons, Rabin and Gulotta, JJ., concur.
Ordinarily, appellate review is confined to the part of the order appealed from (Matter of Burk, 298 N.Y. 450, 455). However, we have held that where the portion of an order appealed from is "inextricably intertwined" with the balance of the order from which an appeal has not been taken, an appellate court may not be circumscribed in its review, nor precluded from passing upon so much of the order as is necessarily affected by the portion from which an appeal has been taken (Lea v. Lea, 59 A.D.2d 277, 280; see, also, Matter of Burk, supra, p 455; Statella v. Statella, 28 A.D.2d 669, 670).
Since the State court lacks subject-matter jurisdiction over the postelection remedies sought by Arnold, summary judgment should have been granted to the International. In view of our dismissal on the basis of lack of jurisdiction, we hold that substantial justice requires a reversal even as to those defendants who have not taken an appeal, since our lack of jurisdiction applies with equal force as to them (5 Am Jur 2d, Appeal and Error, §§ 949, 951; Boice v Jones, 106 App. Div. 547, 548; cf. St. John v Andrews Inst. for Girls, 192 N.Y. 382, 386; Statella v Chuckrow Constr. Co., 28 A.D.2d 669, 670). Concur — Murphy, P.J., Lupiano, Birns and Lane, JJ.