
    In the Matter of Arthur A. Gaines et al., Individually and as Copartners, Doing Business as Gaines, Reis & Co., Respondents, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Appellants.
    Argued March 24, 1980;
    decided May 1, 1980
    
      APPEARANCES OF COUNSEL
    
      Robert Abrams, Attorney-General (Nigel G. Wright and Shirley Adelson Siegel of counsel), for appellants.
    
      Daniel M. Sleasman for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (66 AD2d 106).

The Tax Commission’s finding that the taxpayer firm held the partner’s stock exchange membership as a capital asset was not supported by substantial evidence. Nor was the proof sufficient to sustain a finding that the firm was entitled, directly or indirectly, to benefit from the proceeds of the sale of this asset. Hence, the Tax Commission was not justified in treating the gain from the sale of the asset as income realized by the firm for purposes of the unincorporated business tax (see Tax Law, § 705, subd [a]).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment affirmed, with costs, in a memorandum.  