Opinion
Argued November 17, 1977
Decided December 19, 1977
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Frank G. Opton and David Werchen for appellants.
Louis J. Lefkowitz, Attorney-General (Francis V. Dow and Ruth Kessler Toch of counsel), for respondent.
Judgment affirmed, with costs, on the memorandum at the Appellate Division ( 55 A.D.2d 982).
Concur: Judges GABRIELLI, JONES, WACHTLER and COOKE. Judge FUCHSBERG dissents and votes to reverse in the following opinion in which Chief Judge BREITEL and Judge JASEN concur.
I would reverse the judgment of the Appellate Division and annul the determination of the State Tax Commission essentially for the reasons expressed in Mr. Justice LARKIN'S dissenting memorandum with the following caveat.
The statement in Matter of Newcomb ( 192 N.Y. 238, 250) that "[l]ess evidence is required to establish a change of domicile from one state to another than from one nation to another" must be deemed to have lost much, if not most, of its original vitality with the passage of time (but see Matter of Bodfish v Gallman, 50 A.D.2d 457, 458 ). Newcomb was decided in 1908; in supersonic 1977, it can no longer be said that a change of domicile to Europe is any more difficult or less probable than one to Alaska or Hawaii.
Relieved of this "heavier burden", it is even more evident that petitioners effected a bona fide change of domicile (citizenship is not involved here) and that the State Tax Commission's determination to the contrary is not supported by substantial evidence (CPLR 7803, subd 4). The "mere scintilla of evidence" upon which it relied "is not sufficient to support a finding upon which legal rights and obligations are based" (Matter of Stork Rest. v Boland, 282 N.Y. 256, 273-274 [LEHMAN, Ch. J.]).
Judgment affirmed, etc.