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Fritz Grunbaum's Collection: 449 Artworks/81 Schieles Per 6/20/1938

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Fritz Grunbaum's Collection: 449 Artworks/81 Schieles Per 6/20/1938 From Murder To Museums: Recent Nazi Looted Art Cases NYCLA June 16, 2015 Hon. Barbara Jaffe Raymond J. Dowd Partner – Dunnington Bartholow & Miller LLP - NYC 2 U.S. Court Asked to Act Against Germany in Nazi Art Acquisition Now Valued at $250 Million Collection Once Presented to Hitler as “Surprise Gift” Current Owners Insist 1935 Jewish Owners Freely Sold To Nazis February 24, 2015 Washington, D.C. - February 24, 2015 American and British descendants of Jews who escaped from Nazi Germany, and whose joint art collection included precious medieval works worth an estimated $250-300 million today, have asked the United States District Court for the District of Columbia to restitute that collection from Germany and from the current possessor of the collection, Germany's Prussian Cultural Heritage Foundation (SPK). This is the first time U.S. Courts have been asked to intervene in Germany's refusal to recognize the claimants’ ownership of these works, known as The Guelph Treasure, which were stolen in what the claimants say was a "sham transaction" forced upon their predecessors in 1935. 3 4 5 6 7 April 24, 1863 – Executive Order 100 – Lieber Code 31. A victorious army appropriates all public money, seizes all public movable property until further direction by its government, and sequesters for its own benefit or of that of its government all the revenues of real property belonging to the hostile government or nation. The title to such real property remains in abeyance during military occupation, and until the conquest is made complete. 34. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character-such property is not to be considered public property in the sense of paragraph 31; but it may be taxed or used when the public service may require it. 35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whi1st besieged or bombarded. 36. If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured. 8 37. The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, lands, boats or ships, and the churches, for temporary and military uses. 38. Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the Army or of the United States. U.S. signed the Hague Conventions of 1899 and 1907 which incorporated the protections of the Lieber Code of public and private cultural property. 9 10 11 Portrait of Adele Bloch- Bauer Gustav Klimt (1907) Republic of Austria v. Altman, 541 U.S. 677 (2004)(permitted Maria Altmann to sue Austria for stolen painting in Austrian museum) 12 In re Flamenbaum, 2013 NY Slip Op 07510 [22 NY3d 962] - Third Century gold tablet from Temple of Ishtar, stolen from German museum by Soviet Troops – museum initially lost due to laches; decision overturned as Court disallowed “spoils of war” argument and upheld WWII-era U.S. policy against pillaging of cultural artifacts 13 In re Flamenbaum Supreme Court of the State of New York Appellate Division: Second Department In re Flamenbaum, 2013 NY Slip Op 07510 [22 NY3d 962] - On November 14, 2013, the NY Court of Appeals reversed an earlier decision, and awarded the Vorderasiatisches Museum the rightful ownership and possession of the Tablet. 1) “The Estate failed to establish the affirmative defense of laches, which requires a showing ‘that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the [E]state (see Solomon R.Guggenheim Found. v Lubell, 77 NY2d 311, 321).’ The Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent’s death, that he was in possession of the tablet (compare Matter of Peters v Sotheby’s Inc., 34 AD3d 29, 37-38)” 2) “We decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by conquering military force (see Menzel v List, 49 Misc2d 300, 305-308).” 14 The Drawing – Egon Schiele’s Seated Woman With Bent Left Leg (“Torso”) – K 51/ JK 1974 15 Bakalar v. Vavra Allegations The Drawing has an established and documented provenance. It originally belonged to the collection of Fritz Grunbaum, a well-known Viennese cabaret performer. In 1938, the Nazis confiscated Grunbaum's residence and inventoried the contents of his art collection. Grunbaum was deported to Dachau, where he died in 1941...(Complaint ¶ 5) 16 Sotheby’s February 8, 2005 Auction Catalog 17 Replevin Menzel v. List, 267 N.Y.2d 804, 819 (Sup. Ct. N.Y. Co. 1966) modified 279 N.Y.S.2d 608 (1st Dept. 1967) modified and aff’d 24 N.Y.2d 91 (1969). • Preponderance of the evidence Fritz Grunbaum owned Drawing when shipped to Dachau Concentration Camp; • Fritz Grunbaum did not abandon Drawing; • Drawing never returned to Grunbaum or court- designated heir Declaration of title and replevin. 18 Conversion Elements of Conversion: • Claimants had superior right to possession; • After learning of superior right to possession, possessor retained possession; • Remedy: damages and costs of recovery Conversion encompasses both wrongful takings and wrongful detention. Nat Koslow, Inc. v. Bletterman, 197 N.Y.S.2d 583, 586 (N.Y.Sup.1960) Conversion requires neither bad faith, e.g., Nat Koslow, Inc., 197 N.Y.S.2d at 586; Parker v. P & N Recovery of N.Y., Inc., 697 N.Y.S.2d 462, 467 (N.Y.Civ.Ct., 1999), nor wrongful intent, e.g., Spodek v. Liberty Mut. Ins. Co., 547 N.Y.S.2d 100, 102 (2d Dep't 1989) 19 Affirmative Defense of Laches • Grunbaum’s heirs knew of Drawing’s Grunbaum provenance; • Knowing of the Grunbaum provenance, heirs delayed without excuse; • Possessor suffered prejudice as a result of Defendants’ failure to act. See Bakalar v. Vavra (WHP) Aug. 10, 2006 20 Burdens of Proof • In New York, when a property owner reclaims property, the burden of proof shifts to the holder of the property to prove that the property was acquired lawfully. Guggenheim v. Lubell , 153 A.D.2d 143, 153, 550 N.Y.S.2d 618, 624 (First Dept. 1990) aff’d 77 N.Y.2d 311, 321 21 Fritz Grunbaum Born April 7, 1880, Brno, Moravia Died January 14, 1941, Dachau Concentration Camp 22 www.imdb.com -Famous film star Berlin -Famous cabaret performer -Famous writer Part of Austria’s “Abbott & Costello” – style comedy team 23 10/5/1942 Elisabeth “Lily” Grunbaum deported to Maly Trostinec24 Bernstein v. N.V. Nederlandsche- Amerikaansche Stoomvaart-Maatshappij, 201 F.2d 375, 376 (2d Cir. 1954) - Act of State Doctrine does not apply to Nazi spoliation - Nazis not to be considered as legitimate government - Ordinarily, courts won’t review the acts of a foreign sovereign under the “act of state” doctrine - Review came at request of US State Department indicating US foreign policy to undo the acts of Nazis - Known as “Tate exception” to Act of State Doctrine 25 Defendants’ Claim to Title: Heirs of Fritz Grunbaum • Austrian co-heirs under 2003 Estate Assignment Certificate (Probate Decree) • Fritz predeceased wife, no issue • Fritz and Elizabeth (“Lily”) had separate property Under Austrian law: • Fritz’s heirs take 50% of Fritz’s property • Elizabeth’s (“Lily”) heirs take 50% of Fritz’s property 26 Lily Grünbaum to Leon Elise aka Alzebeta Fischer (50%) Zozuli di Salino to Milos Vavra (50%) Lily Grünbaum (Fritz’s Wife) Elise aka Alzebeta Zozuli di Salino (Fritz’s Sister) Max Herzl (Lily’s Brother/Fritz’s Brother-in-Law) Marta Bakalová (Elise’s Daughter/ Renee Fischer nee Herzl Fritz’s Niece) (Max’s Daughter/ Fritz’s Niece) October 31, 2003 Estate Assignment Leon Fischer Certificate Milos Vavra (Renee’s Son/ (by 1994 Will) Fritz’s Grand-Nephew) Fischer & Vavra Co-Heirs 27 George Grosz, 26 July 1893 - 6 July 1959 Grosz – Fit For Active Duty (1916) Grosz – Blood is the Best Sauce - 1919 Grosz – Shut Up and Do Your Duty (1927) 32 Alfred Flechtheim, April 1, 1878 – March 3, 1937 Nazi Party Platform 1920 #4. Only Nationals can be Citizens of the State. Only persons of German blood can be nationals, regardless of religious affiliation. No Jew can therefore be a German National. 23(c) We demand laws against trends in art and literature which have a destructive effect on our national life, and the suppression of performances that offend against the above requirements.
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