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May 18, 1976

Henry H. WELDON, Defendant. George STROGANOFF-SCHERBATOFF, Plaintiff, v. Charles B. WRIGHTSMAN and Jayne Wrightsman, Defendants

The opinion of the court was delivered by: BONSAL


 BONSAL, District Judge.

 Plaintiff George Stroganoff-Scherbatoff commenced these actions alleging conversion of certain works of art by defendants Henry H. Weldon, Charles B. Wrightsman and Jayne Wrightsman. Specifically, in a complaint filed February 6, 1974, plaintiff alleged that Henry H. Weldon "converted to his own use a painting known as Portrait of Antoine Triest, Bishop of Ghent, ["Triest Portrait"], by Sir Anthony Van Dyck, of the value of $50,000, the property of plaintiff." Then, in another complaint filed December 31, 1974, plaintiff alleged that Charles B. Wrightsman and Jayne Wrightsman converted to their own use a bust of Diderot by Houdon, described in Catalogue 2043 of Rudolph Lepke's Kunst-Auctions-Hause, No. 225 with a property value of $350,000. A subsequent suit, 75 Civ. 3174, was brought against the Metropolitan Museum of Art, the present owner of the Diderot bust, which was subsequently consolidated with the Wrightsman case by Court order dated September 30, 1975. *fn1"

 Defendants now move pursuant to Fed.R.Civ.P. 56(b) for summary judgment in their favor. In support of his motion, defendant Weldon has submitted his own affidavit; the affidavit of his attorney, Harry E. Youtt, Esq.; the affidavit of Robert L. Manning, the Director-Curator of the Finch College Museum of Art; portions of the "Sammlung Stroganoff" or auction catalogue prepared for the auction in Berlin, May 12-13, 1931; and portions of the Catalogue de la Galerie des Tableaux of the Imperial Hermitage, St. Petersburg, Russia.

 Defendants Wrightsman have submitted an affidavit by their attorney, Betty J. Pearce, Esq.; several documents including "The Stroganoff Palace-Museum -- A Brief Guide, St. Petersburg, 1922"; excerpts from the "Sammlung Stroganoff" decrees of the All Russian Central Executive Committee and of the Council of People's Commissars; "Eighteenth Century French Art in the Stroganov Collection"; affidavits of the translators of these documents; documents on Soviet law and the Soviet Constitution; and the affidavit of Charles B. Wrightsman.

 In opposition to these motions, plaintiff has submitted his own affidavit and a supplemental affidavit of his attorney, Lyman Stansky, Esq.

 Before deciding these motions for summary judgment, the Court, in a Memorandum to Counsel, gave the parties ". . . an opportunity to submit further briefs on the Act of State and Statute of Limitations points in light of Princess Paley Olga v. Weisz, [1929] 1 K.B. 718; Menzel v. List, 22 A.D.2d 647, 253 N.Y.S.2d 43 (1964); and Menzel v. List, 49 Misc.2d 300, 267 N.Y.S.2d 804 (1966)." Supplemental memoranda of law and additional affidavits were subsequently filed by all parties.

 It appears undisputed that both the Triest Portrait and the Diderot bust were sold in Berlin in 1931 at the Lepke Kunst-Auctions-Hause (hereinafter "Lepke Auction") by order of the Handelsvertretung or Trade Consulate of the U.S.S.R. *fn2" The Triest Portrait was purchased by the Frank T. Sabin Gallery in London which later sold it to the Alfred Brod Gallery, Ltd. in London. In 1963, defendant Weldon acquired the painting from the Brod Gallery and remains the present owner. It is unclear from the record who purchased the Diderot bust at the Lepke Auction; however, Charles B. Wrightsman later acquired the bust in June, 1965 from French & Company, Inc., a New York art dealer, and later donated it to the Metropolitan Museum of Art on or about November 14, 1974.

 Plaintiff alleges that he is the direct descendant of Count Alexander Sergevitch Stroganoff, the original owner of both works of art, and that he is the rightful owner of these works of art by reason of familial succession. Plaintiff contends that the auction catalogue for the Lepke Auction described these works as part of the Stroganoff Collection. ("Sammlung Stroganoff".)

 Defendant Weldon contends that the auction catalogue does not support plaintiff's contentions that the Triest Portrait was part of the Stroganoff Collection. Rather, Weldon contends that the Portrait was part of the collection of the Imperial Hermitage Museum in St. Petersburg, Russia. *fn3" Moreover, defendant Weldon contends that even if plaintiff can prove ownership of the painting by familial succession, the Court is barred from granting any relief by reason of the Act of State Doctrine.

 Defendants Wrightsman also contend that the Act of State Doctrine bars any relief.

 The Act of State Doctrine

 The Act of State Doctrine requires courts of this country to refrain from independent examination of the validity of a taking of property by a sovereign state where 1) the foreign government is recognized by the United States at the time of the lawsuit, and 2) the taking of the property by the foreign sovereign occurred within its own territorial boundaries.

 In Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897), plaintiff brought suit against the defendant, the commander of a revolutionary army in Venezuela, for damages caused by defendant's refusal to issue a passport and for alleged assaults and affronts by defendant's soldiers in Venezuela. Since the United States had recognized the ...

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