法学专业外文翻译6

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1、外文文献资料 THE SOLOMON R. GUGGENHEIM FOUNDATION, RESPONDENT, v. MRS. JULES LUBELL, APPELLANT. (THIRD & FOURTH-PARTY ACTIONS.) 77 N.Y.2d 311, 569 N.E.2d 426, 567 N.Y.S.2d 623 (1991). February 14, 1991 1 No. 3 Decided February 14, 1991 This opinion is uncorrected and subject to revision before publication

2、 in the New York Reports. Jeffrey Barist, F. Ellen Zeifer and Glenn M. Kurtz, NY City, for Appellant. Norman A. Senior, Harry Torczyner and Gary B. Friedman, NY City, for Respondent. Janis Ettinger, NY City, for International Foundation for Art Research, amicus curiae. WACHTLER,Ch.J.: The backdrop f

3、or this replevin action (see, CPLR art. 71) is the New York City art market, where masterpieces command extraordinary prices at auction and illicit dealing in stolen merchandise is an industry all its own. The Solomon R. Guggenheim Foundation, which operates the GuggenheimMuseum in New York City, is

4、 seeking to recover a Chagall gouache worth an estimated $200,000. The Guggenheim believes that the gouache was stolen from its premises by a mailroom employee sometime in the late 1960s. The appellant Rachel Lubell and her husband, now deceased, bought the painting from a well-known Madison Avenue

5、gallery in 1967 and have displayed it in their home for more than 20 years. Mrs. Lubell claims that before the Guggenheims demand for its return in 1986, she had no reason to believe that the painting had been stolen. On this appeal, we must decide if the museums failure to take certain steps to loc

6、ate the gouache is relevant to the appellants statute of limitations defense. In effect, the appellant argues that the museum had a duty to use reasonable diligence to recover the gouache, that it did not do so, and that its cause of action in replevin is consequently barred by the statute of limita

7、tions. The Appellate Division rejected the appellants argument. We agree with the Appellate Division that the timing of the museums demand for the gouache an in assessing the merits of the statute of limitations defense. We see no justification for undermining the clarity and predictability of this

8、rule by carving out an exception where the chattel to be returned is a valuable piece of art. Appellants affirmative defense of laches remains viable, however, and her claims that the museum did not undertake a reasonably diligent search for the missing painting will enter into the trial courts eval

9、uation of the merits of that defense. Accordingly, the order of the Appellate Division should be affirmed. The gouache, known alternately as Menageries or Le Marchand de Bestiaux (The Cattle Dealer), was painted by Marc Chagall in 1912, in preparation for an oil painting also entitled Le Marchand de

10、 Bestiaux. It was donated to the museum in 1937 by Solomon R. Guggenheim. The museum keeps track of its collection through the use of accession cards, which indicate when individual pieces leave the museum on loan, when they are returned and when they are transferred between the museum and storage.

11、The museum lent the painting to a number of other art museums over the years. The last such loan occurred in 1961-62. The accession card for the painting indicates that it was seen in the museum on April 2, 1965. The next notation on the accession card is undated and indicates that the painting coul

12、d not be located. Precisely when the museum first learned that the gouache had been stolen is a matter of some dispute. The museum acknowledges that it discovered that the painting was not where it should be sometime in the late 1960s, but claims that it did not know that the painting had in fact be

13、en stolen until it undertook a complete inventory of the museum collection beginning in 1969 and ending in 1970. According to the museum, such an inventory was typically taken about once every ten years. The appellant, on the other hand, argues that the museum knew as early as 1965 that the painting

14、 had been stolen. It is undisputed, however, that the Guggenheim did not inform other museums, galleries or artistic organizations of the theft, and additionally, did not notify the New York City Police, the FBI, Interpol or any other law enforcement authorities. The museum asserts that this was a t

15、actical decision based upon its belief that to publicize the theft would succeed only in driving the gouache further underground and greatly diminishing the possibility that it efforts to recover the gouache had been exhausted, the museums Board of Trustees voted to deaccession the gouache, thereby

16、removing it from the museums records. Mr. and Mrs. Lubell had purchased the painting from the Robert Elkon Gallery for $17,000 in May of 1967. The invoice and receipt indicated that the gouache had been in the collection of a named individual, who later turned out to be the museum mailroom employee

17、suspected of the theft. They exhibited the painting twice, in 1967 and in 1981, both times at the Elkon Gallery. In 1985, a private art dealer brought a transparency of the painting to Sothebys for an auction estimate. The person to whom the dealer showed the transparency had previously worked at th

18、e Guggenheim and recognized the gouache as a piece that was missing from the museum. She notified the museum, which traced the painting back to the defendant. On January 9, 1986, Thomas Messer, the museums director, wrote a letter to the defendant demanding the return of the gouache. Mrs. Lubell refused to return the