(dissenting). This is a proceeding under article 78 of the Civil Practice Act, brought by the committee of Alfred Rothfeld, an incompetent person, against the respondent State Tax Commission to review a determination denying resettlement of the incompetent’s personal income tax for 1938 and denying refund of the tax paid.
The incompetent taxpayer, Alfred Rothfeld, resided in New York city with his mother until her death in 1917. Then it became necessary to have a committee appointed because of his interest in her estate. The committee was appointed by the Supreme Court, New York county, in 1920 and at present consists of the brothers of the petitioner herein. The incompetent’s domicile was and is in the State of New York. Between 1918 and 1920 the incompetent had been taken to North Adams, Mass., because the nurse who had been caring for him married one Lucius C. Yeaw and removed to his home at that place. A year later Mrs. Yeaw died and her husband took over the duties of caring for the incompetent. They five in a one-family private dwelling owned by Mr. Yeaw. The expenses of the household, including taxes and an automobile registered in Mr. Yeaw’s name, are paid by the committee and Mr. Yeaw receives nearly $6,000 a year for his services in maintaining the incompetent, having no other business or occupation. The furnishings likewise belong to Mr. Yeaw. No quarters are maintained for the incompetent in this State and he does not spend more than thirty days here in any year.
Reports are made to the Supreme Court, New York county, as to the incompetent’s welfare and “ the manner in which he is maintained.” No income taxes are paid to the State of Massachusetts.
The taxpayer suffers from dementia prsecox but his condition has not grown worse since 1920. The .petition alleges that this is an incurable mental disease and respondents’ answer denies knowledge or information sufficient to form a belief as to such allegation. The only evidence offered on this point was an excerpt read by *57petitioners’ attorney at the formal hearing from an affidavit of a physician made in the incompetency proceeding in 1920, to the effect that the ailment “ is practically always incurable.”
The claim for refund was denied after an informal hearing on the ground that maintenance by someone else of a place of abode, in which an incompetent domiciliary of the State of New York is cared for, was not sufficient compliance with the statutory exemption to relieve the latter from taxation under article 16. The determination of the Tax Commission denying application for revision after a formal hearing gives rise to this proceeding.
The claim here made upon the facts involved presents the single question of whether petitioners’ incompetent, admittedly a domiciliary of New York, maintained a permanent place of abode elsewhere so as to fall within the exemption from tax made by the definition of “ resident ” in subdivision 7 of section 350 of the Tax Law.
Subdivision 7 of section 350 of the Tax Law (as amd. by Laws of 1934, chap. 462, and Laws of 1935, chap. 286) reads in part: “ The word ‘ resident ’ applies only to natural persons and includes any person domiciled in the State, except a person who, though domiciled in the State, maintains no permanent place of abode within the State, but does maintain a permanent place of abode without the State, and who spends in the aggregate not to exceed thirty days of the taxable year within the State.” As amended by chapter 462 of the Laws of 1934, the section was given retroactive application to January 1, 1919.
Alfred Rothfeld, the incompetent person, is fifty-nine years old and was never married. He went to North Adams, Mass., in 1918 or 1920; he was already in North Adams when the committee was appointed. He has no permanent or semipermanent or partly permanent quarters of any kind with the committee or in any other place in the State of New York. All his clothes and personal belongings are kept in North Adams. He owns no furniture or furnishings of any kind. All of these conditions were true in 1938; there has been no place in New York State since 1920 where he had a place of residence or a place of abode. He comes to New York once every three or four years for a visit of two or three days and during such visit is a transient guest at a hotel.
It is conceded that the taxpayer is domiciled in New York although actually living in Massachusetts even before he was adjudged incompetent by the New York court.
The committee of an incompetent or the guardian of an infant may consent to the establishment of residence for such incompetent or infant in another place. We do not understand that the incom*58petent can establish a domicile other than that which existed at the time that his incompetency was adjudged. (Matter of Curtiss, 199 N. Y. 36; Matter of Robitaille, 78 Misc. 108; Commonwealth v. Kernochan, 129 Va. 405; 106 S. E. 367.)
The guardian cannot cause the ward’s domicile to be changed to a place in a State other than the one in which the appointment was made. (Restatement, Conflict of Laws, § 40.)
It is certain that Alfred Rothfeld was domiciled in the State of New York where his committee was appointed and where they lived. It is also clear that he maintains no permanent place of abode within the State but there is maintained for him a permanent place of abode without the State and that he does not spend in the aggregate thirty days of a taxable year within the State.
He is entitled to the exemption that he claims and the determination under review should be annulled and the tax refunded, with fifty dollars costs and disbursements.
Hill, P. J., concurs.
Determination confirmed, without costs.