Court Decision Could Make it More Difficult to Recover Artwork

The New York Sun 15 September 2006
Joseph Goldstein

The steel magnate Albert Otten took many paintings with him when he fled the Nazis. He resided in Manhattan for a time and died a prominent man, near the end of the 20th century.

For several years, he shared the city with a man named Curt Glaser. It is unclear whether the two ever met, but Glaser, at one time a prominent art historian, surely knew well an Edvard Munch painting in Otten's collection. The artist once gave the painting to Glaser. In 2004, an executor of Glaser's wife's estate went to court to try to get the painting back.

In a sharply worded decision yesterday, a mid-level appellate court unanimously decided that enough time had passed that any claim Glaser had to the art had expired.

The decision sets a high standard in New York for families seeking to recover artwork that they separated with during the Holocaust and in the years before. The decision suggests that one-time owners and their heirs have to prove they strenuously sought to recover the artwork in the intervening decades.

"This decision makes it clear that when you can prove that the picture has been publicly exhibited and the alleged rightful owner has been sitting on his rights all these years without saying anything, that it is too late to raise the issue," a lawyer opposing the wife's heir, Charles Moerdler, said yesterday in an interview.

Indeed, the decision, written by Judge Peter Tom, questions whether Glaser should have taken further steps during the 1930s to reacquire the painting if it had indeed been stolen. Judge Tom questions why Glaser never reported to the authorities that the artwork had been stolen in 1936, as is now suggested. The decision does not suggest to which authorities, German or otherwise, Glaser, a Jew then living in Switzerland, could have turned.

The painting changed hands several times. In 1933 Glaser gave it for safekeeping to his brother, an art dealer, who later sold it to the Galerie Hermann Abels, in Cologne. Otten purchased it there.

The executor of the estate, Ellen Ash Peters, claims that the decision by Glaser's brother to sell the painting in 1936 was not authorized and constituted theft, according to the decision.

The author of a book on Munch and a friend of the artist, Glaser certainly noted the painting's absence. In a letter dated December 25, 1936, to the artist, Glaser lamented over his loss of the painting and said it had led to a break with his brother.

"I would have forgiven him everything except for the fact that he sold — behind my back — the painting, 'Street in Kragero' that you once gave as a gift to me and my deceased wife," the letter reads, according to the decision. "It took me considerable effort to find out where the painting finally landed, but I tried in vain to buy it back, even when I was willing to sacrifice quite a bit for it. It is now hanging in a collection in Cologne."

Judge Tom uses that letter as evidence that the professor sought to purchase the painting instead of reporting a theft.

"If Professor Glaser did not treat the painting as stolen in 1936, his wife's estate will not be heard to speculate, some 70 years after the fact, that it might have been misappropriated."

The painting, which depicts a scene from the Norwegian town, was exhibited between 1958 and 1960 at Brandeis, Drew, and Wesleyan universities without attracting any claims of ownership from Glaser's relatives. Glaser died in 1943.

Sotheby's sold the painting at a London auction in 2002 to an unknown dealer, Mr. Moerdler said. The executor, Ms. Peters, once chief justice of the Connecticut Supreme Court, filed suit in 2004 to force Sotheby's to identify the purchaser. Yesterday's decision — signed also by judges John Buckley, Joseph Sullivan, Eugene Nardelli, and James McGuire — reverses a decision last year by Judge Charles Tejada. A lawyer for Chief Justice Peters could not be reached for comment yesterday.
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