536 F.Supp. 829 (E.D.N.Y. 1981), 69 C 93, Kunstsammlungen Zu Weimar v. Elicofon

Docket Nº:69 C 93.
Citation:536 F.Supp. 829
Party Name:KUNSTSAMMLUNGEN ZU WEIMAR and Elisabeth Mathilde Isidore Erbgross-Herzogin Von Sachsen-Weimar-Eisenach (Grand Duchess of Saxony-Weimar), Plaintiffs-Intervenors, and Federal Republic of Germany, Original Plaintiff, v. Edward I. ELICOFON, Defendant.
Case Date:June 15, 1981
Court:United States District Courts, 2nd Circuit

Page 829

536 F.Supp. 829 (E.D.N.Y. 1981)

KUNSTSAMMLUNGEN ZU WEIMAR and Elisabeth Mathilde Isidore Erbgross-Herzogin Von Sachsen-Weimar-Eisenach (Grand Duchess of Saxony-Weimar), Plaintiffs-Intervenors,


Federal Republic of Germany, Original Plaintiff,


Edward I. ELICOFON, Defendant.

No. 69 C 93.

United States District Court, D. New York

June 15, 1981

Page 830

Botein, Hays, Sklar & Herzberg, New York City, for plaintiff-intervenor Kunstsammlungen zu Weimar; Harry I. Rand, Lawrence M. Kaye, Amy Adelson, David S. Weiss, and James Altman, New York City, of counsel.

Cleary, Gottlieb, Steen & Hamilton, New York City, for defendant; Richard W. Hulbert, George J. Grumbach, David G. Sabel, and Richard S. Lincer, New York City, of counsel.

Memorandum of Decision and Order

MISHLER, District Judge.

This action was commenced in 1969 by the Federal Republic of Germany, as the representative of the people of Germany, to recover possession from defendant Elicofon of two portraits painted by the renowned fifteenth century German artist Albrecht Duerer. The paintings disappeared from their place of safekeeping in Germany during the occupation of Germany by the Allied Forces in the summer of 1945. In 1966 the paintings were discovered in the possession of Elicofon, who had purchased them in Brooklyn, New York from an American serviceman in 1946.

By order dated March 25, 1969, this court granted the Grand Duchess of Saxony-Weimar leave to intervene as plaintiff. The Grand Duchess asserted ownership to the paintings by assignment from her husband, Grand Duke Carl August. And by order dated February 24, 1975, six years later, the Kunstsammlungen zu Weimar, a museum located in what is now the German Democratic Republic, the predecessor of which had possession of the paintings before their disappearance, and which claims to be entitled to recover them from Elicofon, was granted the right to intervene as plaintiff in this action.

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Thereafter, on December 9, 1975, the original plaintiff, the Federal Republic of Germany, discontinued its claim with prejudice. And in a Memorandum of Decision and Order, dated August 24, 1978, --- F.Supp. ----, this court dismissed the intervenor-complaint and cross-complaint of the Grand Duchess of Saxony-Weimar. Thus, the only parties remaining in the action are the plaintiff-intervenor Kunstsammlungen and the defendant Elicofon.

Presently before the court are the motions of plaintiff-intervenor Kunstsammlungen zu Weimar for summary judgment and the cross-motion of defendant Elicofon for summary judgment (Defendant's Memorandum of Law, p.2). Fed.R.Civ.P. 56.


Until 1927, the Duerer portraits which are the subject of this suit formed part of the private art collection of the Grand Duke of Saxe-Weimar-Eisenach. Under the terms of a Settlement Agreement of 1927 between the Land of Thuringia and the widow of Wilhelm Ernst, the then owner of the private collection, title to the Grand Ducal Art Collection had been transferred to the Land of Thuringia. Thuringia was created by Federal German Law of April 20, 1920 and was the legal successor to the territory of Weimar, which included as one of its seven subdivisions Saxe-Weimar-Eisenach, the territory over which the Grand Dukes formerly had presided before being ousted from power. 1

In 1933, Hitler assumed power in Germany. Throughout much of the period of the Third Reich, until 1943, the Duerer paintings remained on exhibit in a museum in Weimar, Thuringia, known as the Staatliche Kunstsammlungen zu Weimar, the predecessor to the Kunstsammlungen zu Weimar. But in 1943, after the commencement of World War II, Dr. Walter Scheidig, the then Director of the Staatliche, according to his account, anticipated the bombardment of Weimar and had the Duerers and other valuable items of the museum transferred to a storeroom in a wing of a nearby castle, the Schloss Schwarzburg, located in the District of Rudolstadt in the Land of Thuringia, where they remained until their disappearance in the summer of 1945.

On May 8, 1945, the Hitler Government surrendered. On June 5, 1945, the Allied Powers-the United Kingdom, the United States, the U.S.S.R. and the French Republic-issued a Declaration stating that the Allied Governments assumed supreme authority with respect to Germany, including all the powers possessed by the German Government. For the purposes of occupation, Germany was divided into four zones with one of the Four Powers assuming military authority over each zone to effect its own policy in regard to local matters and the policy of the Allied Control Council in regard to matters affecting Germany as a whole.

Under the June 1945 Declaration the Land of Thuringia was designated to be part of the Soviet Zone of Occupation. However, the American Military Forces had occupied Thuringia, with a regiment stationed at Schwarzburg Castle, since the defeat of Germany or some time before the official surrender in April or May of 1945. In accordance with the Allied plan, on July 1, 1945, the United States turned over control of Thuringia to the Soviet Armed Forces. According to Dr. Scheidig's account, the disappearance of the Duerer portraits from Schwarzburg Castle coincided in time with the departure of the American troops from the Castle.

Political differences and disagreement over the future of Germany developed between the Western Allies and the Soviet Union. Irreconcilable divisions prompted the Soviet Union's Commander in Chief to resign from the Allied Control Council on March 7, 1948 and the Council thereafter

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ceased meeting as the combined governing body of occupied Germany. On September 21, 1949, the Federal Republic of Germany was established in the former French, British and United States Zones; and on October 7, 1949, the German Democratic Republic was established in the former Soviet Zone.

On April 14, 1969, retroactive to January 1, 1969, the Minister of Culture of the German Democratic Republic, issued an order conferring juridical personality upon the former Staatliche Kunstsammlungen, which thereafter became known as the Kunstsammlungen zu Weimar, a status which under East German Law entitled the Kunstsammlungen to maintain suit for return of the Duerers. The Kunstsammlungen moved to intervene as a plaintiff in this action for return of the Duerer portraits in April 1969. In a Memorandum of Decision and Order dated September 25, 1972, we denied the motion to intervene on the ground that the Kunstsammlungen was an arm and instrumentality of the German Democratic Republic, a country not recognized by the United States at the time. 358 F.Supp. 747 (E.D.N.Y.1972), aff'd 478 F.2d 231 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1443, 39 L.Ed.2d 489, reh. denied, 416 U.S. 952, 94 S.Ct. 1962, 40 L.Ed.2d 302 (1974). On September 4, 1974, the United States extended formal recognition to the German Democratic Republic. Accordingly, by order of February 24, 1975, upon motion, we vacated our prior order and permitted the Kunstsammlungen to file its complaint. In its complaint, the Kunstsammlungen alleges that the Duerer paintings were stolen in 1945 from the Staatliche Kunstsammlungen zu Weimar and that Elicofon acquired them from the thief or his transferee and, therefore, has no right to them; and that as successor to the rights of the former Territory of Weimar and Land of Thuringia, the Kunstsammlungen is entitled to immediate possession. In his answer Elicofon denies that he holds the paintings wrongfully and on the basis of certain affirmative defenses, which are asserted in support of its motion for summary judgment, denies that the Kunstsammlungen is entitled to recover the paintings.


A. In support of its motion for summary judgment, Kunstsammlungen argues:

There exists no genuine issue of material fact as to whether Elicofon could have acquired good title. The uncontradicted account of Dr. Scheidig, Director of the Kunstsammlungen at the time the paintings disappeared, creates the irrefutable inference that the paintings were stolen in 1945 from Schwarzburg Castle. Thus, Elicofon could not have acquired good title to the Duerers even if he purchased them without knowledge of their source.

B. In support of its motion for summary judgment dismissing the complaint Elicofon argues:

1. Assuming that Elicofon did not acquire good title upon his purchase of the paintings, he later acquired title under the German law doctrine of ERSITZUNG.

  1. (a) The Kunstsammlungen's claim is barred by the statute of limitations.

    (b) Even if the Kunstsammlungen's claim is not barred by the statute of limitations, the Kunstsammlungen is estopped because of inordinate delay in prosecuting its claim.

  2. (a) The Kunstsammlungen lacks standing.

    (b) Under German law the Kunstsammlungen lacks the capacity to prosecute the claim.

    Each of the grounds advanced by the parties is discussed separately below.

    A. The Kunstsammlungen's Motion for Summary Judgment

    In moving for summary judgment the movant bears the burden of showing the absence of a genuine issue as to any material fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Kunstsammlungen argues that the irrefutable facts in this case indicate that Elicofon could not have acquired good title to the Duerers.

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    According to Elicofon, he acquired the Duerer portraits in 1946 when he bought them for $450 from a young American ex-serviceman, about 25 to 30 years old, who appeared at Elicofon's Brooklyn home with about eight paintings and who told Elicofon that he had purchased the paintings in Germany. Although Elicofon learned the name of the person he has since forgotten it. Elicofon had the paintings framed and hung them on a wall in his home with others. They remained there until 1966 when a friend, Stern, having seen a pamphlet...

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