836 F.2d 103 (2nd Cir. 1987), 165, DeWeerth v. Baldinger

Docket Nº:165, 296, Dockets 87-7392, 87-7402.
Citation:836 F.2d 103
Party Name:Gerda Dorothea DeWEERTH, Plaintiff-Appellee, v. Edith Marks BALDINGER, Defendant-Third-Party-Plaintiff-Appellant, v. WILDENSTEIN & CO., INC., Third-Party-Defendant-Appellant.
Case Date:December 30, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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836 F.2d 103 (2nd Cir. 1987)

Gerda Dorothea DeWEERTH, Plaintiff-Appellee,


Edith Marks BALDINGER, Defendant-Third-Party-Plaintiff-Appellant,


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

Nos. 165, 296, Dockets 87-7392, 87-7402.

United States Court of Appeals, Second Circuit

December 30, 1987

Argued Oct. 26, 1987.

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Leslie Gordon Fagen, New York City (Edward M. Sills, Paul, Weiss, Rifkind, Wharton & Garrison, New York City on the brief), for defendant-third-party-plaintiff-appellant.

Jeremy G. Epstein, New York City (Charles M. Lizza, Kenneth A. Freeling, Robert Y. Lewis, Shearman & Sterling, New York City on the brief), for third-party-defendant-appellant.

Joseph D. Becker, New York City (Fox & Horan, Becker Glynn & Melamed, New York City on the brief), for plaintiff-appellee.

Before FEINBERG, Chief Judge, NEWMAN and WINTER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal concerns a dispute over ownership of a painting by Claude Monet that disappeared from Germany at the end of World War II and has been in the possession of a good-faith purchaser for the last 30 years. The appeal presents primarily the issue whether New York law, which governs this dispute, requires an individual claiming ownership of stolen personal property to use due diligence in trying to locate the property in order to postpone the running of the statute of limitations in a suit against a good-faith purchaser. The issue arises on an appeal from a judgment of the District Court for the Southern District of New York (Vincent L. Broderick, Judge) ruling that plaintiff-appellee Gerda Dorothea DeWeerth, a citizen of West Germany who owned the Monet from 1922 until 1943, was entitled to recover it from defendant-appellant Edith Marks Baldinger, an American citizen who purchased the painting in New York in 1957 and who has possessed it ever since. We conclude that New York law imposes a due diligence requirement, that the undisputed facts show that DeWeerth failed to exercise reasonable diligence in locating the painting after its disappearance, and that her action for recovery is untimely. We therefore reverse the judgment of the District Court.


Claude Monet is, perhaps, the most well-known and widely admired member of the school of impressionist painters active in France in the late nineteenth and early twentieth centuries. It was his early work, "Impression: Sunrise, Le Havre" (1872) from which the term "impressionism" was coined. His later works, including the depictions of haystacks, poplars, and the gardens at Giverny remain paragons of the impressionist style and reflect Monet's unsurpassed ability to capture on canvas the dazzling and magical play of light on the natural world.

The painting in the pending case, Monet's "Champs de Ble a Vetheuil," is one of a series of similar impressionistic landscapes painted by the artist near the town of Vetheuil, located on the Seine in Northern France. The oil painting, measuring 65 by 81 centimeters, shows a wheat field, a village, and trees. It is signed and dated "Claude Monet '79." The painting is estimated to be worth in excess of $500,000.

Plaintiff Gerda Dorothea DeWeerth is a citizen of West Germany. Her father, Karl von der Heydt, the owner of a substantial art collection, purchased the Monet in 1908. DeWeerth inherited the painting in 1922 along with other works of art from her father's estate. She kept the painting in her home in Wuppertal-Elberfeld, Germany, from 1922 until 1943, except for the two-year period 1927-1929 when the Monet was in the possession of her mother. A photograph taken in 1943 shows the Monet hanging on a wall in DeWeerth's residence.

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In August 1943, DeWeerth sent the Monet and other valuables to the home of her sister, Gisela von Palm, for safekeeping during World War II. Von Palm lived in a castle in Oberbalzheim, Southern Germany. Von Palm received the shipment, including the Monet, which she hung in the castle. In 1945, at the end of the war, American soldiers were quartered in von Palm's residence. Following the soldiers' departure, von Palm noticed that the Monet was missing. She informed her sister of the painting's disappearance in the fall of 1945. 1

DeWeerth contacted several authorities concerning the lost Monet. In 1946, she filed a report with the military government administering the Bonn-Cologne area after the war. The report is no longer extant, but DeWeerth testified that it was a standard government form in which she briefly described items she had lost during the war. In 1948, in a letter to her lawyer, Dr. Heinz Frowein, regarding insurance claims on property she had lost, DeWeerth expressed regret about the missing Monet and inquired whether it was "possible to do anything about it." Frowein wrote back that the Monet would not be covered by insurance; he did not initiate an investigation. In 1955, DeWeerth sent the 1943 photograph of the Monet to Dr. Alfred Stange, a former professor of art and an expert in medieval painting, and asked him to investigate the painting's whereabouts. Stange responded that the photo was insufficient evidence with which to begin a search, and DeWeerth did not pursue the matter with him further. Finally, in 1957 DeWeerth sent a list of art works she had lost during the war to the Bundeskriminalamt, the West German federal bureau of investigation. None of DeWeerth's efforts during the period 1945-1957 to locate the Monet was fruitful. DeWeerth made no further attempts to recover the painting after 1957.

In the meantime, the Monet had reappeared in the international art market by 1956. In December of that year, third-party defendant-appellant Wildenstein & Co., Inc., an art gallery in New York City, acquired the Monet on consignment from Francois Reichenbach, an art dealer in Geneva, Switzerland. From December 1956 until June 1957, the painting was in the possession of Wildenstein in New York, where it was shown to several prospective buyers. Defendant Edith Marks Baldinger eventually purchased the painting in June 1957 for $30,900. The parties have stipulated that Baldinger purchased for value, in good faith, and without knowledge of any adverse claim.

Since 1957, Baldinger has kept the Monet in her New York City apartment, except for two occasions when it was displayed at public exhibitions. From October 29 to November 1, 1957, it was shown at a benefit at the Waldorf-Astoria Hotel, and in 1970 it was loaned to Wildenstein for an exhibition in its New York gallery for approximately one month.

DeWeerth learned of Baldinger's possession of the Monet through the efforts of her nephew, Peter von der Heydt. In 1981, von der Heydt was told by a cousin that DeWeerth had owned a Monet that had disappeared during the war. Shortly thereafter, von der Heydt identified the painting in a published volume of Monet's works, Claude Monet: Bibliographie et Catalogue Raisonne, Vol. I 1840-1881 (intro. by Daniel Wildenstein, La Bibliotheque des Arts, Lausanne and Paris, 1974), which he found at the Wallraf-Richartz Museum in Cologne, less than 20 miles from where DeWeerth has been living since 1957. The Catalogue Raisonne indicated that the painting had been sold by Wildenstein in 1957 and that Wildenstein had exhibited it in 1970. In 1982, DeWeerth retained counsel in New York and requested Wildenstein

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to identify the current owner. When Wildenstein refused, DeWeerth brought an action in New York Supreme Court under N.Y.Civ.Prac.L. & R. Sec. 3102(c) (McKinney 1970) for "disclosure to aid in bringing an action." In December 1982, the court ruled in favor of DeWeerth, and Wildenstein was compelled to identify Baldinger. By letter dated December 27, 1982, DeWeerth demanded return of the Monet from Baldinger. By letter dated February 1, 1983, Baldinger rejected the demand.

DeWeerth instituted the present action to recover the Monet on February 16, 1983. 2 At the conclusion of discovery, the parties submitted the case to Judge Broderick for decision on the record. The District Court adjudged DeWeerth the owner of the painting and ordered Baldinger to return it. The District Judge found that DeWeerth had superior title and that the action was timely as she had exercised reasonable diligence in finding the painting. DeWeerth v. Baldinger, 658 F.Supp. 688 (S.D.N.Y.1987).


In this diversity action, we must apply the substantive law of New York, including the applicable New York choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under New York law, actions that accrue within the State are governed by the local statute of limitations, while actions that accrue outside the State may be subject, pursuant to New York's "borrowing" statute, to the foreign jurisdiction's limitations provisions. See Martin v. Julius Dierck Equipment Co., 43 N.Y.2d 583, 588-89, 403 N.Y.S.2d 185, 187, 374 N.E.2d 97, 99 (1978); N.Y.Civ.Prac.L. & R. Sec. 202 (McKinney 1972). However, actions that accrue outside the State are subject to a borrowed limitations period only if it is shorter than New York's. See N.Y.Civ.Prac.L. & R. Sec. 202 & practice commentary 202:3 (McKinney 1972). In the present case, if DeWeerth's action is time-barred under New York's limitations law, then the action is untimely regardless of whether it accrued in New York or Germany.

The New York statute of limitations governing actions for recovery of stolen property requires that suit be brought within three years of the time the action accrued. N.Y.Civ.Prac.L. & R. Sec. 214(3) (McKinney 1972). The date of accrual depends upon the identity of the party from whom recovery is sought. Where an owner pursues the party who took his property, the three-year...

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