Kunstsammlungen Zu Weimar v. Elicofon

Memorandum of Decision and Order

This action was commenced in 1969 by the Federal Republic of Germany, as the representative of the people of Germany, to recover possession from defendant Elicofon of two portraits painted by the renowned fifteenth century German artist Albrecht Duerer. The paintings disappeared from their place of safekeeping in Germany during the occupation of Germany by the Allied Forces in the summer of 1945. In 1966 the paintings were discovered in the possession of Elicofon, who had purchased them in Brooklyn, New York from an American serviceman in 1946.

By order dated March 25, 1969, this court granted the Grand Duchess of Saxony-Wei-mar leave to intervene as plaintiff. The Grand Duchess asserted ownership to the paintings by assignment from her husband, Grand Duke Carl August. And by order dated February 24,1975, six years later, the Kunstsammlungen zu Weimar, a museum located in what is now the German Democratic Republic, the predecessor of which had possession of the paintings before their disappearance, and which claims to be entitled to recover them from Elicofon, was granted the right to intervene as plaintiff in this action.

*831 Thereafter, on December 9, 1975, the original plaintiff, the Federal Republic of Germany, discontinued its claim with prejudice. And in a Memorandum of Decision and Order, dated August 24, 1978, 536 F.Supp. 813, this court dismissed the intervenor-complaint and cross-complaint of the Grand Duchess of Saxony-Weimar. Thus, the only parties remaining in the action are the plaintiff-intervenor Kunstsammlungen and the defendant Elicofon.

Presently before the court are the motions of plaintiff-intervenor Kunstsammlungen zu Weimar for summary judgment and the cross-motion of defendant Elicofon for summary judgment (Defendant’s Memorandum of Law, p.2). Fed.R.Civ.P. 56.

HISTORICAL SETTING & FACTS

Until 1927, the Duerer portraits which are the subject of this suit formed part of the private art collection of the Grand Duke of Saxe-Weimar-Eisenach. Under the terms of a Settlement Agreement of 1927 between the Land of Thuringia and the widow of Wilhelm Ernst, the then owner of the private collection, title to the Grand Ducal Art Collection had been transferred to the Land of Thuringia. Thuringia was created by Federal German Law of April 20, 1920 and was the legal successor to the territory of Weimar, which included as one of its seven subdivisions Saxe-Weimar-Eisenach, the territory over which the Grand Dukes formerly had presided before being ousted from power. 1

In 1933, Hitler assumed power in Germany. Throughout much of the period of the Third Reich, until 1943, the Duerer paintings remained on exhibit in a museum in Weimar, Thuringia, known as the Staatliche Kunstsammlungen zu Weimar, the predecessor to the Kunstsammlungen zu Weimar. But in 1943, after the commencement of World War II, Dr. Walter Scheidig, the then Director of the Staatliche, according to his account, anticipated the bombardment of Weimar and had the Duerers and other valuable items of the museum transferred to a storeroom in a wing of a nearby castle, the Schloss Schwarzburg, located in the District of Rudolstadt in the Land of Thuringia, where they remained until their disappearance in the summer of 1945.

On May 8, 1945, the Hitler Government surrendered. On June 5, 1945, the Allied Powers — the United Kingdom, the United States, the U.S.S.R. and the French Republic — issued a Declaration stating that the Allied Governments assumed supreme authority with respect to Germany, including all the powers possessed by the German Government. For the purposes of occupation, Germany was divided into four zones with one of the Four Powers assuming military authority over each zone to effect its own policy in regard to local matters and the policy of the Allied Control Council in regard to matters affecting Germany as a whole.

Under the June 1945 Declaration the Land of Thuringia was designated to be part of the Soviet Zone of Occupation. However, the American Military Forces had occupied Thuringia, with a regiment stationed at Schwarzburg Castle, since the defeat of Germany or some time before the official surrender in April or May of 1945. In accordance with the Allied plan, on July 1, 1945, the United States turned over control of Thuringia to the Soviet Armed Forces. According to Dr. Scheidig’s account, the disappearance of the Duerer portraits from Schwarzburg Castle coincided in time with the departure of the American troops from the Castle.

Political differences and disagreement over the future of Germany developed between the Western Allies and the Soviet Union. Irreconcilable divisions prompted the Soviet Union’s Commander in Chief to resign from the Allied Control Council on March 7, 1948 and the Council thereafter *832 ceased meeting as the combined governing body of occupied Germany. On September 21, 1949, the Federal Republic of Germany was established in the former French, British and United States Zones; and on October 7,1949, the German Democratic Republic was established in the former Soviet Zone.

On April 14, 1969, retroactive to January 1, 1969, the Minister of Culture of the German Democratic Republic, issued an order conferring juridical personality upon the former Staatliche Kunstsammlungen, which thereafter became known as the Kunstsammlungen zu Weimar, a status which under East German Law entitled the Kunstsammlungen to maintain suit for return of the Duerers. The Kunstsammlungen moved to intervene as a plaintiff in this action for return of the Duerer portraits in April 1969. In a Memorandum of Decision and Order dated September 25, 1972, we denied the motion to intervene on the ground that the Kunstsammlungen was an arm and instrumentality of the German Democratic Republic, a country not recognized by the United States at the time. 358 F.Supp. 747 (E.D.N.Y.1972), aff’d 478 F.2d 231 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1443, 39 L.Ed.2d 489, reh. denied, 416 U.S. 952, 94 S.Ct. 1962, 40 L.Ed.2d 302 (1974). On September 4, 1974, the United States extended formal recognition to the German Democratic Republic. Accordingly, by order of February 24, 1975, upon motion, we vacated our prior order and permitted the Kunstsammlungen to file its complaint. In its complaint, the Kunstsammlungen alleges that the Duerer paintings were stolen in 1945 from the Staatliche Kunstsammlungen zu Weimar and that Elieofon acquired them from the thief or his transferee and, therefore, has no right to them; and that as successor to the rights of the former Territory of Weimar and Land of Thuringia, the Kunstsammlungen is entitled to immediate possession. In his answer Elieofon denies that he holds the paintings wrongfully and on the basis of certain affirmative defenses, which are asserted in support of his motion for summary judgment, denies that the Kunstsammlungen is entitled to recover the paintings.

SUMMARY OF ARGUMENTS

A. In support of its motion for summary judgment, Kunstsammlungen argues:

There exists no genuine issue of material fact as to whether Elieofon could have acquired good title. The uncontradicted account of Dr. Scheidig, Director of the Kunstsammlungen at the time the paintings disappeared, creates the irrefutable inference that the paintings were stolen in 1945 from Schwarzburg Castle. Thus, Elieofon could not have acquired good title to the Duerers even if he purchased them without knowledge of their source.

B. In support of its motion for summary judgment dismissing the complaint Elieofon argues:

1. Assuming that Elieofon did not acquire good title upon his purchase of the paintings, he later acquired title under the German law doctrine of ERSITZUNG.

2. (a) The Kunstsammlungen’s claim is barred by the statute of limitations, (b) Even if the Kunstsammlungen’s claim is not barred by the statute of limitations, the Kunstsammlungen is estopped because of inordinate delay in prosecuting its claim.

3. (a) The Kunstsammlungen lacks standing.

(b) Under German law the Kunstsammlungen lacks the capacity to prosecute the claim.

Each of the grounds advanced by the parties is discussed separately below.

A. The Kunstsammlungen’s Motion for Summary Judgment

In moving for summary judgment the movant bears the burden of showing the absence of a genuine issue as to any material fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Kunstsammlungen argues that the irrefutable facts in this case indicate that Elieofon could not have acquired good title to the Duerers.

*833 According to Elicofon, he acquired the Duerer portraits in 1946 when he bought them for $450 from a young American ex-serviceman, about 25 to 30 years old, who appeared at Elicofon’s Brooklyn home with about eight paintings and who told Elicofon that he had purchased the paintings in Germany. Although Elicofon learned the name of the person he has since forgotten it. Elicofon had the paintings framed and hung them on a wall in his home with others. They remained there until 1966 when a friend, Stern, having seen a pamphlet containing lists of stolen artworks, informed Elicofon of their identity. At that time Elicofon made public his possession of the Duerers which precipitated a demand by the Kunstsammlungen for their return. Elicofon maintains that he purchased the paintings in good faith, without knowledge of their source or identity.

For the purpose of its motion for summary judgment, the Kunstsammlungen accepts the truth of Elicofon’s version of the manner in which he acquired the Duerers. The Kunstsammlungen argues that good faith is irrelevant.

It is a fundamental rule of law in New York that a thief or someone who acquires possession of stolen property after a theft “cannot transfer a good title even to a bona fide purchaser for value [because] [o]nly the true owner’s own conduct, or the operation of law ... can act to divest that true owner of title in his property . . . .” 3 Williston, Sales § 23-12.

The Kunstsammlungen contends that the circumstances surrounding the disappearance of the Duerers leave no question that the paintings were stolen from Schwarzburg Castle where they had been stored, and that consequently Elicofon could not have acquired title to the paintings. Elicofon claims that there does exist a question as to those facts on which the Kunstsammlungen relies to establish a theft; alternatively, he claims, such a theft does not preclude a finding that Elicofon s transfer- or acquired good title to the paintings in Germany. Thus, the question on this motion is whether the facts about which there is no genuine dispute indicate that Elicofon bought the paintings from one who was incapable of conveying title.

1. The Occurrence of a Theft

On a motion for summary judgment, the moving party has the initial burden of presenting “evidence on which, taken by itself, it would be entitled to a directed verdict.” Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972). The facts about which the Kunstsammlungen contends there is no dispute were related by Dr. Walter Scheidig. Until 1940 Dr. Scheidig was the Deputy Director of the Kunstsammlungen zu Weimar, and from 1940 to 1967 was the Director of the museum. The facts were told by Dr. Scheidig at a deposition conducted by counsel for all parties to this action in May, 1971; 2 in addition, various documents and letters are submitted as exhibits in support thereof. Dr. Scheidig died in 1974. The facts as told by Dr. Scheidig are as follows:

In 1943, anticipating the bombardment of Weimar, where the Kunstsammlungen is located, Dr. Scheidig had the Duerers and other works of art in the Staatliche collection transferred to a nearby castle, the Schloss Schwarzburg, in a section of which they were stored for safekeeping. Shortly after the American Forces assumed occupation of Thuringia in the spring of 1945, Dr. Scheidig wrote a letter to the U. S. Military Government in Weimar advising it of the artwork stored at Schwarzburg and other places in and around Weimar, and urged that all such depositories be secured by the Military Government (Scheidig dep. exh. 8).

On May 9, 1945, Dr. Scheidig, by letter (Id. Exh. 9), requested that the Thuringia Land Ministry of Education 3 secure Mili *834 tary Government permission for him to visit the various depositories. Permission having been granted (id. Exhs. 10,11), Dr. Scheidig drove to the Schwarzburg and other depositories on June 12, 1945 with a Ministry official. During a stop in Rudolstadt, a neighboring town about 10 miles from Schwarzburg, Dr. Scheidig learned that an American Military unit had been stationed at Schwarzburg. Upon arriving in Schwarzburg, Dr. Scheidig had a discussion with the commanding officer who handed the keys to the storeroom to a soldier who accompanied Dr. Scheidig there. Other soldiers entered the storeroom while Dr. Scheidig was present, apparently out of curiosity. On this visit Dr. Scheidig also met one Fassbender who had been living on the castle grounds. Fassbender had been employed by the Reich Government to refurbish Schwarzburg Castle for use as a summer retreat for Hitler. Dr. Scheidig noted at the deposition that Fassbender had nothing to do with the art depository.

Having found all in order and all the paintings and other items in their place on June 12, 1945, he recorded his findings in a memorandum to his files dated June 13, 1945 (Id. Exh. 12). In addition to writing that all was in order, Dr. Scheidig wrote that the soldier who accompanied him to the storeroom was a Princeton student who was extremely interested in the collection of art. He also wrote that during his visit, Fassbender had told him that nothing had been removed from the storeroom. Similarly, Dr. Scheidig reported that the works of art in the storeroom had been examined by the American soldiers but no disorder or destruction was caused.

On June 27, 1945, Dr. Scheidig again visited Schwarzburg Castle. This trip was a brief visit made at the behest of the U. S. Military Government for the purpose of recovering from the Castle certain personal items of a Dr. Messter before he left for the West with the American Forces. Dr. Scheidig took the opportunity to make a quick survey of the status of the art objects in the depository. Again a serviceman accompanied him. This time it appeared that an inside door had been forced open; paintings had been removed from the racks on which they rested and were lying about the room; cabinets had been forced open. The conditions, Dr. Scheidig reported, were frightening.

After this June 27 visit, Dr. Scheidig made two records of his findings. In a memorandum to his files dated July 3, 1945 (Id. Exh. 15), he described the disarray in the depot and reported that he complained to the commanding officer about the condition of the storeroom and was told that the guards at the Castle were not responsible for the artworks but were guarding submarine parts. The officer recommended that the artwork be removed from the Castle.

As to the Duerer paintings, Dr. Scheidig wrote in the memo: “The two Duerer pictures were not anymore in their old place and could, for the time being, not be found.” The meaning of this statement as described at his deposition was that the Duerer paintings were not in their place on the racks in the depot; yet, there was insufficient time to make a thorough investigative search of the premises. Thus, “for the time being” meant “until the next thorough checking.” 4

Dr. Scheidig’s June 27, 1945 visit to Schwarzburg Castle was also recorded in a letter to the Thuringian Ministry of Education dated July 5,1945 (Id. Exh. 16). In the letter he reported that the doors of the depot had been forced open and cabinets and boxes opened. In support of a request for authority to remove the Kunstsammlungen’s collection from the castle he wrote: “In the depot in Schwarzburg are the most *835 important pieces of art of the Land of Thuringia from the Weimar Castle Museum (paintings of Duerer, Cranach [and] Fried-rich) .... Losses from this depot will be irreplaceable.”

The Russian Army replaced the U. S. Military in Thuringia on July 2, 1945. 5 Dr. Scheidig was able to visit Schwarzburg again on July 19, 1945, accompanied by his assistant, Dr. Marchand and another Rudolstadt official. The custodian of the Castle grounds, Ehle, was still there and reported that the depository door had been forced open and he had nailed it shut after the Americans left. The storeroom was, as before, in a shambles, now with empty frames lying about. Dr. Scheidig and his assistant inventoried the missing paintings and finally established that the Duerers were among them.

In a letter dated July 21, 1945 (Id. Exh. 19), Dr. Scheidig reported to the Land Ministry that certain paintings had been stolen from the art depot and attached a list of the missing paintings with exact descriptions and photographs. The Duerer portraits and another painting by Friedrich were described in the letter as “the most valuable possessions of the Land of Thuringia.” Dr. Scheidig also stated that the thefts “were obviously committed by American soldiers before their departure,” specifically, by the troops stationed there under Captain R.R. “Ewarr” (changed in ink to ‘EstesT (sic)). He also suggested that the architect Fassbender, who had fled to south Germany shortly before the Americans left, also could have been involved in the theft.

The theft of the Duerers and the commencement of efforts to secure their recovery prompted further correspondence in regard to them. Dr. Scheidig had much correspondence with a Dr. Zimmerman, Director of the Kaiser Freidrich Museum in Berlin. Dr. Scheidig informed Dr. Zimmerman of the theft in a memorandum dated September 30, 1945, and stated that the discovery that the depot had been looted was made “immediately after the American troops had left on July 1, 1945.” In response to two letters from Dr. Zimmerman dated September 28, 1945 (Id. Exh. 21) and October 10, 1945 (Id. Exh. 23), in which Dr. Zimmerman requested more specific information about the thefts to relay to the authorities, Dr. Scheidig wrote two letters to Dr. Zimmerman, dated October 3, 1945 (Id. Exh. 22) and October 12, 1945 (Id. Exh. 24). In the letter of October 3, 1945 Dr. Scheidig wrote that the thefts probably occurred “in the last hours before the departure of the American troops on July 1, 1945.” And on October 12 he identified the troops stationed at Schwarzburg as “of the 15 American Inf. Division under the command of Capt. Paul Estes .. . [who] had the key to the depository in his possession. ...”

In a letter dated March 22, 1946 to Dr. Carl Mueller of the Bavarian National Museum in Munich, (Id. Exh. 28) Dr. Scheidig wrote that the paintings had been stolen “at the time of the departure of the American troops.”

In a memorandum dated September 6, 1948 for transmittal to the Soviet Military Administration, (Id. Exh. 30), Dr. Scheidig charged that the Americans under the command of Captain Paul Estes were responsible for the theft, noting that footprints and cigarette butts of Americans were left behind in the storeroom. Dr. Scheidig stated that the paintings were determined to be missing “on July 19, 1945, after the departure of the American troops.”

In January 1961, Dr. Scheidig recounted the circumstances surrounding the disappearance of the Duerers in a memorandum and letter written to Ms. Ardelia Hall, a United States State Department official in charge of the program to locate the missing artworks. The account is substantially the same as prior accounts except that in the *836 1961 letter Dr. Scheidig wrote that on June 27, 1945 when he visited the castle the paintings were “no longer in the repository,” as opposed to “no longer in their old place,” as he had stated in the memorandum of July 3, 1945. In addition, Dr. Scheidig added to the account that the soldier who accompanied him to the storeroom on June 27 specifically asked him about the Duerer portraits and that Dr. Scheidig and the officer reported to the commanding officer that the paintings were missing, not only that the room was in a shambles, for which the commander is said to have disclaimed responsibility. Similarly, at the deposition in 1971, Dr. Scheidig stated that it was his belief that the paintings had already been stolen on June 27, and that the commanding officer was told that the paintings were missing.

Although Dr. Scheidig, in 1961 and 1971 was convinced that the Duerers had already been stolen on June 27, 1945 when the storeroom was in a shambles and the paintings were not in their places on the racks, the Kunstsammlungen does not adopt the version since a thorough examination of the storeroom could not be made on that day. The Kunstsammlungen only asserts that it is clear from Dr. Scheidig’s testimony and the supporting documents that the Duerers were stolen sometime between June 12, 1945, when Dr. Scheidig last saw them in the storeroom, and July 19, 1945, when the theft was finally established.

Elicofon claims that the Kunstsammlungen has failed to carry its initial burden of presenting a prima facie case because internal inconsistencies in Dr. Scheidig’s various accounts raise a question of his credibility. We disagree. We find no significance in the inconsistencies in Dr. Scheidig’s various accounts. And, unlike Elicofon, we find that Dr. Scheidig’s explanations at the deposition of any ambiguities in his past correspondence were consistent with what is already apparent to a reasonable person from the Kunstsammlungen’s records and Dr. Scheidig’s deposition testimony.

Elicofon is primarily concerned with inconsistencies in Dr. Scheidig’s accounts as to when the theft occurred. Thus, in the documents of July 3 and July 5, Dr. Scheidig made no mention of a theft and, in fact, included the Duerers in a list of paintings located at Schwarzburg, but on July 21, 1945 and thereafter, up to 1961, Dr. Scheidig wrote that the theft was carried out by the Americans upon their departure from Schwarzburg on July 1, 1945; and in the letter of 1961 and at the deposition in 1971, Dr. Scheidig stated that the paintings were no longer in the repository on June 27,1945, which fact was reported to the commanding officer. 6

Not having had the opportunity to check the depot thoroughly on June 27, 1945 it is reasonable that Dr. Scheidig did not officially report to the Thuringian Ministry in the letter of July 5 that the theft had occurred. As to why, in his request for permission to move the collection from Schwarzburg he listed the Duerers as among the paintings located at Schwarzburg, Dr. Scheidig explained: “In order to point out the urgency of the shipping, I just mentioned a few painters, in order to point to the fact how precious the collection is, without wanting to say or to express that at that point of time the pictures were still there.” On the other hand, it is also reasonable for Dr. Scheidig to have complained to the commanding officer of the theft on June 27 without being certain that a theft had in fact occurred, since the officer ostensibly had the power to secure their return. Thus, the documents of July 3 and July 5 are not inconsistent with Dr. Scheidig’s belief in 1961 and 1971 that the theft had already occurred by June 27.

*837 Nor are the statements in the documents of July 21,1945 up to 1961 inconsistent with the 1961 letter and 1971 deposition. The descriptions in the correspondence of the date by which the theft occurred by no means exclude June 27 since it was soon “before the Americans departed from Schwarzburg on July 1,” and may be described figuratively as “the last hours” before their departure.

It is apparent from the frequent correspondence concerning the theft of the Duerers that Dr. Scheidig gave much thought to the circumstances surrounding the theft. Thus, it is quite understandable for Dr. Scheidig to have finally concluded sometime after 1945 that the Duerers, missing from their racks on June 27, had probably already been stolen at that time. Indeed, Dr. Scheidig noted at his deposition the use of the phrase “in the last hours” before the departure of the Americans to describe the time of the theft was based on the impression gained on the July 19 inspection when empty frames were lying about, whereas on June 27 no empty frames were lying about. 7

Having rejected as a matter of law Elicofon’s assertions of the existence of internal inconsistencies in Dr. Scheidig’s account which create a credibility issue, we find as a matter of law that the Kunstsammlungen has presented a prima facie case establishing that the Duerers were stolen from Schwarzburg sometime between June 12 and July 19, 1945.

Once the party moving for summary judgment has presented evidence which would sustain a directed verdict, the burden shifts to the party opposing the motion to offer competent evidence which “raises a substantial question of the veracity or completeness of the movant’s showing or presents countervailing facts.” Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972); First National Bank of Cincinnati v. Pepper, 454 F.2d 626 (2d Cir. 1972).

The evidence presented by Elicofon which he purports raises a substantial question of the veracity of plaintiff’s case consists of the affidavits of former officers of Company F, 2d Battalion, 406th Infantry Regiment, 102nd Division, which was stationed in the town of Schwarzburg above which stood the promontory on which the Castle was situated. The affidavits submitted are those of Lieutenants Cecil A. Wooten, Clinton Walters and John Gwynn, and Captain Paul Estes.

The essence of the statements made by the three lieutenants is that they never met or heard of Dr. Scheidig and never heard of any missing paintings; that they never heard Dr. Scheidig report the theft of the Duerers to the Captain in the presence of a lieutenant despite Scheidig’s statement that he did so; that they didn’t know paintings were stored at the Castle although one remembers hearing of the picture of a child with a fly on his nose (Cranach’s “Venus with Amor,” also reported missing by Dr. Scheidig) and one remembers seeing paintings in crates in one building and machine parts in an adjoining building. All express the belief that they would have been informed of missing paintings. Most of the officers recall the architect Fassbender. Captain Estes reports that he recalls seeing the painting “Venus with Amor” and an antique pistol; and that upon seeing the antique pistol he placed the castle off limits and posted a guard at one entrance. He too states that he never met or heard of Dr. Scheidig. He recalls Fassbender, with whom he and Lieutenant Gwynn played bridge on a number of occasions.

*838 Elicofon’s purpose in presenting the affidavits of the lieutenants is to show that if Dr. Scheidig were being truthful about his visits to the Castle and the paintings, one of these officers would have known him, or at least, would have known about the missing paintings. 8 We find that the statements of Lieutenants Walters, Wooten and Gwynn are totally irrelevant to the issues of whether Dr. Scheidig visited the Castle or whether he reported the theft of the Duerers to the commanding officer.

Dr. Scheidig never reported that on his visits to the Castle he met officers of Company F, with the exception of the “Captain” and a lieutenant. He only reported that curious soldiers accompanied him to the storeroom to view the paintings. The statements of three officers that they never met or knew of Scheidig out of the many soldiers of Company F certainly cannot be taken as probative of whether Dr. Scheidig visited the Castle.

The statements of these officers in their affidavits that they would have been informed by the Captain if a theft of a valuable painting had been reported is directly contradicted by the prior statements of Lieutenants Walters and Wooten and Captain Estes made to Army investigators during a formal Army investigation in 1954 of the thefts at Schwarzburg. Captain Estes had reported to Army investigators that prior to leaving Schwarzburg he had discovered that the painting “Venus with Amor” was missing and had conducted an investigation to recover it. Lieutenants Walters and Wooten had no knowledge of that theft or investigation. Without some proof that these officers would have known of the theft if it had been reported the statements that these officers did not know of the theft are without foundation and irrelevant.

As to why none of the lieutenants recall Dr. Scheidig to have reported the theft of the Duerers in their presence in view of Dr. Schoidig’s statement that he reported the theft to the Captain in the presence of a lieutenant, we note first that only three of the four lieutenants of Company F submitted affidavits. Second, we note that the Commander of the entire Battalion that included Company F was a Lieutenant Colonel Gatlin. This might have been the lieutenant to whom Dr. Scheidig referred. Indeed, although at his Army investigation interview Lieutenant Gatlin did not recall it, Captain Estes reported to the investigators that he was with Lieutenant Gatlin on a visit to the Castle when he discovered that the “Venus with Amor” was missing.

In the absence of any proof that these officers would have known of the reported incidents the statements that they could not remember them, which we note are not contradictory but merely do not support Dr. Scheidig’s account, are of no significance.

Neither does the statement of Captain Estes that he does not recall Dr. Scheidig raise a question of Dr. Scheidig’s credibility. The first time Dr. Scheidig mentioned Captain Estes by name was in his letter of July 21, 1945 to the Thuringian authorities in which he reported the theft of the paintings and identified the troops responsible for the theft as being under the command of Captain R. R. “Ewarr”. Thus, we may venture a guess that it was not with Captain Estes that Dr. Scheidig met. Dr. Scheidig having so concluded upon learning that Estes was the Captain of Company F. In any event, the fact that Captain Estes does not remember Dr. Scheidig is not necessarily inconsistent with Dr. Scheidig’s account that he met Captain Estes. Even if an issue exists on this point, it is in itself immaterial to the issue of the occurrence of a theft and will not preclude the granting of summary judgment. Adickes v. S. H. Kress & Co., supra, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142. The mere statement by Captain Estes is presented in the face of a *839 volume of contemporaneous memoranda, letters, and records of traveling expenses, all consistent, offered by Dr. Scheidig, in addition to his recollection of facts about Schwarzburg Castle which coincides with facts related by the officers of Company F. Moreover, Dr. Scheidig’s repeated statement that the Americans were responsible for the theft is consistent with Elicofon’s statement of many years later that he acquired the Duerers in 1946 from an American ex-serviceman. “[T]he party opposing summary judgment must be able to point to some facts . .. [that will] refute the proof of the moving party in some material portion,” arid not “merely recite the incantation, ‘Credibility,’ and have a trial on the hope that a jury may disbelieve factually uncontested proof.” Rinieri v. Scanlon, 254 F.Supp. 469 (S.D.N.Y.1966). Elicofon has failed to do so. 9

We find the theft of the Duerers from Schwarzburg Castle between June 12 and July 19, 1945 is beyond dispute.

2. The Architect Fassbender

a) German Law of Good Faith Acquisition

Elicofon argues that even if the Duerers were stolen from Schwarzburg Castle, Elicofon could have acquired good title to the paintings. From the facts told by Dr. Scheidig, Elicofon asserts, it can be inferred that the architect Fassbender, who lived on the Castle grounds and who Dr. Scheidig suspected was involved in the theft, stole the paintings. Elicofon argues that under the German law of “good faith acquisition” Fassbender could have transferred good title to an innocent purchaser

in Germany even though he did not himself have good title; and the good faith purchaser or his transferee, in turn, could have transferred good title to Elicofon. Thus, it is argued that a fact question is presented as to whether Fassbender stole the paintings. The question of fact as to Fassbender’s role in the theft is immaterial because Fassbender could not have conveyed good title under the law of good faith acquisition.

The rules of German law governing the “good faith acquisition” 10 of title in chattels from a thief are derived from provisions of the German Civil Code. The code provisions relating to the transfer of movables are contained in BGB §§ 926-36. BGB § 932 provides:

(1) By virtue of a transfer effected in accordance with § 929, the acquirer also becomes the owner when the thing does not belong to the seller, unless he is not in good faith at the time when, by virtue of these provisions, he would acquire ownership. In case § 929, Sent.2 applies this, however, is applicable only if the purchaser had obtained possession from the disposer.

(2) The acquirer is not in good faith if he knows, or owing to gross negligence does not know, that the thing does not belong to the disposer.

Section 935 limits the application of § 932:

(1) The acquisition of ownership based on §§ 932-34 does not take place, if the thing has been stolen from the owner, becomes missing or otherwise lost. The same applies, where the owner was only an indirect possessor, if the thing was lost by the possessor.

*840 The basic operation of the sections has been summarized as follows in Medicus, Federal Republic of Germany, 6 Int’l. Encyclopedia of Comparative Law F-ll (1979):

Good faith acquisition from a non-entitled party is possible where the transferor is in possession of movable property (§ 932-936).... In the case of movable property, however, the transferred [sic] is defeated by gross negligence (§ 932 par.2) as well as ... by the fact that the property was taken from the entitled party without his consent (§ 935).

Under the cited provisions of German Law, a purchaser acquires good title to property even if the seller has disposed of the property in violation of a fiduciary obligation under which he acquired possession, i.e., even if the seller does not have title, unless the circumstances in BGB § 935 are present. The rule allowing one to acquire good title in the defined circumstances derives historically from the principle of Germanic law that “he who trusts another person has to seek redress for breach of trust not from third parties, but from the object of his confidence.” M. Wolff, Sachenrecht 205-06 (7th ed. 1927).

Both Elicofon and the Kunstsammlungen agree, at least on a superficial level, on the elements required to acquire ownership from one who has no title: (1) the owner must have voluntarily parted with his dominion over the paintings, i.e., the paintings must not have been taken from the owner without his consent; (2) the person from whom the purchaser acquired the paintings must have been in possession of them; and (3) the purchaser must have believed in good faith that that person was the actual owner of the paintings, and that belief must not have been grossly negligent. 3 Staudinger, Kommentor Zum Burgerlichen Gesetzbuch, 658, § 932 n.26 (11th ed. 1956). They differ, however, on whether these elements were satisfied in this case.

The first element about which the parties disagree is whether Fassbender was in “possession” of the paintings within the meaning of BGB § 932, and, therefore, capable of transferring good title. German law distinguishes among three types of possession — indirect possession (“mittelbarer Besité’), direct possession (“unmittelbarer Besitz”) and the mere exercise of physical control by a so-called possessor’s servant (“Besitzdiener”). An indirect possessor is one who has immediate and authorized access to property, and may, in turn authorize another to exercise actual control over such property; an indirect possessor does not himself have physical custody of the property. A direct possessor is one who exercises control over property in his physical possession pursuant to the authorization of an indirect possessor. A possessor’s servant is one who exercises actual control over property for another in a relationship in which he is required to comply with the other’s instructions concerning the property; a possessor’s servant does not acquire “possession” in the legal sense, that is, does not have actual power of control over a thing, BGB § 854, which remains with the direct or indirect possessor.

Elicofon argues that Fassbender was a possessor or a possessor’s servant and, therefore, was capable of transferring title to the paintings to a good faith purchaser. In support of the assertion that Fassbender was either a possessor or a possessory servant Elicofon cites the following: First, in his 1961 letter to Ms. Hall, Dr. Scheidig referred to the 1955 letter sent by Ms. Hall to Dr. Scheidig in which she informed him that she had spoken with people who belonged to the occupation forces and who had an inkling of the gossip of the works of art and who knew of the German architect who lived on the Castle grounds and “took care of” the works of art. 11 As an indica *841 tion of Fassbender’s possession Elicofon also refers to Captain Estes’ statement in his affidavit that Fassbender “appeared to be in charge of” the Castle and its contents.

The evidence offered by Elicofon in support of his conclusion that Fassbender was either a Besitzer or Besitzdiener of the artwork is so insubstantial and does not raise a genuine issue of fact. In any event there exist countervailing facts which surely put the issue to rest. Dr. Scheidig testified that before the U.S. Military took control in Schwarzburg, the storeroom was in the custody of a Platzmeister, guard, who lived at the Castle; and that a museum official of Rudolstadt had the duty to come to Schwarzburg in short intervals. Even if we were to find, and we do not, that there existed some question as to Fassbender’s role at the Castle before the American occupation, no evidence has been offered of his authority over the paintings after Captain Estes assumed complete control over the storeroom in Schwarzburg Castle. Even Dr. Scheidig had to secure permission and get the key from the Americans before entering the storeroom; and permission was not secured from nor was the key in the possession of Fassbender. Captain Estes’ statement that Fassbender “appeared” to be in charge of the Castle could only relate to a time before the Americans arrived; once the Americans assumed power Captain Estes took the key to the storeroom and posted the guard at the Castle. Finally, Dr. Scheidig testified at his deposition that Fassbender had no responsibility or duties in connection with the depository. The conclusory assertion that Fassbender was in charge of the artwork will not serve to create a fact question. Dressler v. M. V. Sandpiper, 331 F.2d 130, 134 (2d Cir. 1964).

Even assuming Fassbender was a de facto custodian of the artwork whose assumption of caretaking duties had been ratified by the appropriate officials, he still would not have been capable of transferring good title. Under the German law of good faith acquisition, only a “possessor” (“Besitzer”) in the legal sense and not a “possessor’s servant” (“Besitzdiener”) can transfer title to a bona fide purchaser under BGB § 932. As a custodian of the artwork Fassbender would have been a public servant; and public servants are, as the very term suggests, persons acting at the discretion of another, i.e., of their superiors and, ultimately of the State which they serve. Therefore, German courts, commentators, and treatise writers are unanimous in the view that civil servants are not possessors but rather possessory servants of the State properties under their charge. 3 Staudinger, Kommentar zum Burgerlichen Gesetzbuch, 40, § 855 (11th ed. 1956); F. Baur, Lehrbuch des Sachenrechts 58 (4th ed. 1968).

We reject Elicofon’s position that a public servant could be a Besitzer. According to Elicofon and the authority on which he relies, in order to be a Besitzdiener, one must be “totally subordinate” to another, Heck, Grundriss des Sachenrechts, § 7.3 (2d ed. 1960), the relationship being categorized as one of “command and obedience”, Wolff-Raiser, Lehrbuch des Burgerlichen Rechts Sachenrecht (10th ed. 1957). He argues that the evidence does not show that Fassbender was “totally subordinate” to another but rather that he exercised some measure of independent control over the Castle and its contents. There is no evidence that Fassbender exercised control to the extent of a Besitzer. In any event, to find that a public servant could achieve the status of a Besitzer would be in conflict with controlling German law and policy.

We also reject Elicofon’s argument that even a Besitzdiener can transfer good title to a bona fide purchaser, if the chattel was transferred to the possessor’s servant (“Besitzdiener”) under conditions conveying the outward appearance of a transfer of legal possession. Elicofon argues that such a transfer is sufficient to supply the element of voluntary parting with possession by the owner which characterizes a transfer of *842 possession to a Besitzer. In other words, Elicofon contends that a good faith acquisition is possible from a possessor’s servant whose social dependence is not apparent to his purchaser. In support of this view Elicofon cites numerous authorities and a decision of the Court of Appeals (Oberlandesgericht, “OLG”) dated March 23, 1949, reported in 1949 Neue Jurístische Wochenschrift 716.

The view advanced by Elicofon is the view of the minority. Because a Besitzdiener does not have legal possession of a chattel in his custody, i.e., the possessor never voluntarily parted with dominion over it as required under BGB § 932, when the Besitzdiener illegally sells the chattel it becomes abhanden zekommen, i.e., stolen, missing or otherwise lost, within the meaning of BGB § 935. A good faith acquisiti