holding that artist’s replevin action for paintings stolen thirty years prior did not accrue until she discovered, or through the exercise of reasonable diligence could have discovered, “the identity of the possessor of the paintings”
How later courts described this case
- holding that artist’s replevin action for paintings stolen thirty years prior did not accrue until she discovered, or through the exercise of reasonable diligence could have discovered, “the identity of the possessor of the paintings”
- stating that cross-motions for summary judgment do not constitute a waiver of factual disputes as "a party may make concessions for the purposes of [her] motion that do not carry over and support the motion of [her] adversary"
- finding that in a replevin action, the discovery rule precluded running of limitations period until plaintiff knew or should have known of the cause of action, "including the identity of the possessor of the paintings"
- noting that when owner knows or has reason to know of injury, limitations statute begins to run for all potential future plaintiffs in chain of title
Written by the judges who cited it.
The opinion
SULLIVAN, J.,
dissenting.
I do not see the need for a remand. We have plaintiff Georgia O’Keeffe’s affidavit and deposition concerning the paintings, defendant Barry Snyder’s affidavit as to the circumstances under which he acquired possession of them and the deposition *506 of third party defendant Ulrich A. Frank. Apparently, the parties felt that there was nothing further needed, as cross-motions for summary judgment were made.
Plaintiff is a famous artist and the creator of the three paintings in suit. These paintings were in her possession located in an art studio run by her husband Alfred Stieglitz. In 1946 she and her husband noticed that one of the paintings, then on display, was missing from the wall on which it was hung. Plaintiff recalled that she and Stieglitz talked about “the picture being gone” although she did not remember exactly what was said. Plaintiff also testified that Stieglitz spoke “a good deal” about the missing picture to everyone who came into the studio.
Shortly thereafter plaintiff discovered that two other paintings of hers, not on display, were also missing. She did not notify the police as she was certain that they could not or would not do anything as the paintings had small monetary value at the time, but she and Stieglitz did speak to friends and acquaintances in art circles about the theft. She said that since “the word was out” in art circles in New York about the stolen paintings she and her husband hoped that some clue as to the identity of the thief would be known. She felt that all she could do was wait and see if some information would come concerning the paintings’ whereabouts. In 1972, shortly after the Art Dealers Association of America, Inc. (Association) came into existence and established a registry of stolen paintings, the loss of the three paintings was reported to the Association which listed them as stolen on its registry.
In late 1975, plaintiff learned that the paintings were on consignment to an art gallery in New York and in February 1976 she discovered that they were in the possession of defendant Barry Snyder, a Princeton art dealer. She immediately demanded their return and, following refusal, instituted the present suit.
Snyder had purchased the pictures from Ulrich A. Frank, the third party defendant, in March 1975. In his affidavit filed in *507 the cause, Snyder, although a professional art dealer, stated that he was unaware of the registry of stolen paintings maintained by the Association which showed the paintings as stolen at the time he purchased them. Although he paid $35,000 for them, Snyder made no attempt to authenticate the paintings or verify ownership—this in spite of the fact that Frank, who had acquired possession of them by gift from Dr. Frank, his late father, did not know how his father had come by the paintings.
Now that his motion for summary judgment has been lost, defendant Snyder suggests speculative possibilities that he says merit inquiry even though there is nothing in the record to support them. I see no substance in any of them, and a remand as prejudicial to plaintiff who is now more than 92 years of age.
She created these paintings. They were in her possession when they disappeared from her husband’s art gallery in 1946. She did not learn of their whereabouts until late 1975 when they were offered for sale. She immediately started suit to recover them as soon as she was able to identify the person who had possession of them. Under these circumstances the six-year statute of limitations for bringing an action in replevin, N.J.S.A. 2A:14-1, was tolled and plaintiff, as the rightful owner, is entitled to a judgment in her favor.
I have no quarrel with most of the legal principles set forth in the majority opinion. We part company in the manner in which they have been applied to the undisputed facts of this case. I would affirm the Appellate Division ruling in its entirety.