
    J. P. Holt, Respondent, v. State of New York, Appellant.
    (Claim No. 50123.)
    Argued May 26, 1971;
    decided July 6, 1971.
    
      
      Louis J. Lefkowits, Attorney-General (Jeremiah Jochnowits and Ruth Kessler Toch of counsel), for appellant.
    
      Robert L. Reck for respondent.
   Order affirmed, with costs.

Concur: Chief Judge Fuld and Judges Burke, Bergan, Breitel, Jasen and Gibson. Judge Scileppi dissents and votes to reverse in the following opinion.

Scileppi, J. (dissenting).

The order appealed from should be reversed. Even assuming that the Court of Claims correctly found that the acts complained of were tortious, I see no causal relationship between the false arrest and the injuries for which claimant seeks compensation. The proof in this regard was most speculative and conjectural and since the injuries were as much the result of claimant’s existing distressed condition as they were of any act of the State, the evidence presented was insufficient to support the judgment rendered.

It is significant here that the State trooper acted properly to protect claimant from the elements in a manner which, under the circumstances, he thought best. As we indicated in Stanton v. State of New York (26 N Y 2d 990, 991), “While hindsight can often furnish reasons for following one course or another, the acts of the trooper * * * must be considered as of the time when, and circumstances under which, they occurred.”

Accordingly, since the trooper’s acts were reasonable, I cannot agree that liability should be visited upon the State and, therefore, dissent.

Order affirmed.  