658 F.Supp. 688 (S.D.N.Y. 1987), 83 Civ. 1233, DeWeerth v. Baldinger

Docket Nº:83 Civ. 1233 (VLB).
Citation:658 F.Supp. 688
Party Name:Gerda Dorothea DeWEERTH, Plaintiff, v. Edith Marks BALDINGER, Defendant and Third-Party Plaintiff, v. WILDENSTEIN & CO., INC., Third-Party Defendant.
Case Date:April 20, 1987
Court:United States District Courts, 2nd Circuit, Southern District of New York

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658 F.Supp. 688 (S.D.N.Y. 1987)

Gerda Dorothea DeWEERTH, Plaintiff,


Edith Marks BALDINGER, Defendant and Third-Party Plaintiff,


WILDENSTEIN & CO., INC., Third-Party Defendant.

No. 83 Civ. 1233 (VLB).

United States District Court, S.D. New York.

April 20, 1987

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[Copyrighted Material Omitted]

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Fox Glynn & Melamed, New York City, for plaintiff; John R. Horan, Jeffrey P. Wiegand, of counsel.

Edward M. Sills, New York City, for defendant and third-party plaintiff.

Shearman & Sterling, New York City, for third-party defendant; Jeremy G. Epstein, of counsel.



Plaintiff Gerda Dorothea DeWeerth seeks the return from defendant Edith Marks Baldinger of a painting by Claude Monet entitled "Champs de Blé à Vetheuil" ("the Monet").

A bench trial was had before me on a "submitted" basis, in which written and videotaped depositions and the exhibits were made available to me. This opinion contains my findings of fact and conclusions of law. 1


The court has jurisdiction of the action under 28 U.S.C. § 1332(a)(2); Mrs. DeWeerth is a citizen of the Federal Republic of Germany, and Mrs. Baldinger is a citizen of the State of New York. The Monet which is the subject of this action is worth more than $10,000.

Venue is proper under 28 U.S.C. § 1391(a).

The Monet is an impressionistic depiction in oil of a wheat field, a village and trees near Vetheuil, France. It measures 65 centimeters by 81 centimeters, and is signed and dated "Claude Monet '79".

Mrs. DeWeerth's father, Karl von der Heydt, purchased the Monet in or about 1908, and he thereafter kept it in his house in Bad Godesberg, West Germany. Plaintiff inherited the Monet from her father after his death on August 9, 1922, in the division of the works and objects of art in his estate. With the exception of the years 1927 to 1929, when the Monet was kept in her mother's house, plaintiff kept the Monet in her residence in Wuppertal-Elberfeld from 1922 until August 1943, where it was on display on a wall next to a sculpture by Auguste Rodin, also inherited from her father. This sculpture is still in plaintiff's possession at her West German residence, and plaintiff has submitted a 1943 photograph showing the Monet and the Rodin displayed together in her residence. From that time until the present, she neither sold nor otherwise disposed of the Monet, nor did she entrust the Monet to anyone else to sell or otherwise dispose of it.

In August 1943, during the Second World War (the "War"), Mrs. DeWeerth sent the Monet, along with the Rodin sculpture and other valuables, by van to her sister Gisela von Palm (now deceased) in Oberbalzheim in Southern Germany, for safekeeping. Although the van arrived, plaintiff never saw the Monet again. In the fall of 1945, Gisela von Palm informed plaintiff of the disappearance of the Monet from Mrs. von Palm's house in Oberbalzheim. There is no direct evidence as to what caused the disappearance of the Monet. American soldiers were quartered in the house after the close of the War in 1945, and it was after they had left that its disappearance was noted. I infer that either one of those soldiers, or someone else, stole the painting from the von Palm house where it had been sent for safekeeping. 2

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Mrs. DeWeerth was approximately 50 years old when she learned of the Monet's disappearance. Subsequently, she made efforts to locate it. In 1946 she reported the loss of the Monet to the military government then administering the Bonn-Cologne area after the end of the War. In 1948 she solicited the assistance of her lawyer, Dr. Heinz Frowein, in attempting to find and recover it. Plaintiff also made inquiries in 1955 of one Dr. Alfred Stange, known to Mrs. DeWeerth as an art expert. In 1957 she reported the Monet as missing to the Bundeskriminalamt (the West German federal bureau of investigation) in Bonn. All of these efforts to find the Monet were unsuccessful.

By December 1956 however, the Monet had found its way to the United States through Switzerland. Third party defendant Wildenstein & Co., Inc. ("Wildenstein"), an art gallery in New York City, appears to have acquired the Monet on consignment from Francois Reichenbach, an art dealer from Geneva, Switzerland, in about December 1956. From December 1956 to June 1957, Wildenstein had possession of the Monet in New York. A Wildenstein record shows a 1962 payment, or credit, to Reichenbach, evidently for the Monet.

In June 1957, Wildenstein delivered the Monet for inspection to Mrs. Baldinger at her residence at 710 Park Avenue, New York, New York. Mrs. Baldinger, after several days, purchased the Monet in good faith and for value from Wildenstein on or about June 17, 1957.

After its purchase by Mrs. Baldinger, the Monet was publicly exhibited only on two occasions. Mrs. Baldinger exhibited the Monet at a benefit held in the Waldorf-Astoria Hotel in New York City, from October 29 to November 1, 1957, and loaned it to Wildenstein for display during a Wildenstein exhibition entitled "One Hundred Years of Impressionism" held April 2 to May 9, 1970 at its gallery in New York City. At the close of this exhibition, Wildenstein returned the Monet to Mrs. Baldinger. Except for those two exhibitions, Mrs. Baldinger maintained the Monet exclusively in her residence at 710 Park Avenue, New York City, from June 1957 to the present date.

There are only four published references to the Monet in the art literature: two of them are in catalogues in connection with the exhibitions already cited, and the other two are in publications with which Wildenstein was apparently connected:

(1) Claude Monet: Bibliographie et Catalogue Raisonne, Vol. 1 1840-1881. Published by la Bibliotheque des Arts, Lausanne, Paris; introduction by Daniel Wildenstein; collaborators Rodelphe Walter, Sylvie Crussard, and the Foundation Wildenstein, 1974, Geneva; painting No. 595.

(2) The exhibition catalogue One Hundred Years of Impressionism, A Tribute to Durand-Ruel, A Loan Exhibition, April 2-May 9, 1970, Wildenstein Gallery, New York; painting No. 43.

(3) Monet: Impressions, Daniel Wildenstein, published in New York, 1967, Library of Congress call No. ND553.M76W5313.

(4) The exhibition catalogue Festival of Art, October 29-November 1, 1957, Waldorf-Astoria Hotel, New York; item 125.

In or soon after July 1981, plaintiff, through the efforts of her nephew Peter von der Heydt, discovered that the Monet had been exhibited in 1970 at the aforementioned Wildenstein loan exhibition. Plaintiff thereafter retained counsel in New York in 1982 to determine whether Wildenstein knew the identity of the present possessor of the Monet. When Wildenstein refused to disclose the possessor's identity or the Monet's whereabouts, plaintiff commenced a proceeding in November, 1982 against Wildenstein in New York State Supreme Court seeking "disclosure to aid in bringing an action" under N.Y.C.P.L.R. § 3102(c).

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On December 1, 1982, the State Supreme Court found for the plaintiff, ordering Wildenstein to reveal the identity of the possessor. Plaintiff thereafter learned that defendant Baldinger possessed the Monet.

By letter to Baldinger dated December 27, 1982, plaintiff demanded return of the Monet. By letter dated February 1, 1983, Baldinger refused the demand. This action ensued.


Under Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), in this diversity action I must apply the same substantive law that New York would apply, including New York's choice of law rules. Thus the initial question is whether, under New York choice of law theory, German or New York law is applicable to determine who owns the Monet.

In resolving this issue, I am guided by Kunstsammlungen Zu Weimar v. Elicofon, 536 F.Supp. 829, 845 (E.D.N.Y.1981), aff'd., 678 F.2d 1150, 1160 (2d Cir. 1982) (" Elicofon "), a case upon which both parties rely. In Elicofon, a diversity action brought by a German government art museum seeking recovery of two stolen paintings, involving both East and West Germany, a foreign national, and an American citizen, the court was required to determine the ownership of two Albrecht Duerer portraits executed around 1499. These portraits had been stolen in 1945 from a castle in what is now East Germany and discovered in 1966 at the New York residence of Elicofon, an American citizen, who alleged that he had purchased them in good faith 20 years earlier from an American ex-serviceman who appeared at his Brooklyn home and represented that he had bought them while in Germany. On cross-motions for summary judgment, the district court held for the German government art museum and against Elicofon, finding that the art museum had sufficient ownership interest in the paintings to pursue the action. In doing so, the district court ruled that German law 3 was not applicable to determine whether Elicofon acquired title to the paintings. It found that "New York's choice of law dictates that questions relating to the validity of a transfer of personal property are governed by the law of the state where the property is located at the time of the alleged transfer." 536 F.Supp. at 846 (citations omitted). Moreover, it noted that the same result would obtain if it applied the "significant relationship" analysis often invoked by New York courts to the facts of the case, that is, if it determined which state had the most significant relationship to the chattel and to the parties. Id.

Applying either analysis dictated the same result in Elicofon: New York law applied. The court ruled that "Germany's connection with the controversy [was]...

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