MATTER OF ROSENTHAL v. KELLY

ORDERED that the final order is affirmed, without costs or disbursements.

The petitioner alleged that the respondent Philip Simon abandoned his domicile in the Village of Spring Valley, and therefore his position as a Trustee in the Village of Spring Valley became vacant.

"For a change to a new domicile to be effected, there must be a union of residence in fact and an `absolute and fixed intention' to abandon the former and make the new locality a fixed and permanent home" (Matter of Hosley v. Curry, 85 N.Y. 447, 451, quoting Matter of Newcomb, 192 N.Y. 238, 251). The party alleging the change of domicile has the burden of proving the change by clear and convincing evidence (see, Matter of Hosley v. Curry, supra). Under the circumstances, the petitioner has failed to meet his burden.