Gaines v. Tully

*1010OPINION 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…