Porter v. Wertz

Order, Supreme Court, New York County, entered June 25, 1976, unanimously affirmed. Respondents shall recover of appellants $60 costs and disbursements of this appeal. Plaintiffs, claiming to be owners of a valuable Utrillo painting, have sued to recover possession or the value thereof from various defendants, through and to some of whom the painting passed after having been delivered to one Wertz, believed by plaintiffs to be a collector, but who sold it to one of the Feigen defendants without plaintiffs’ permission, and then disappeared. The arrangement with the bogus "collector” is said to have been for a temporary loan, to be hung in his home while he decided whether to buy it. The Feigens claim that Wertz made the sale as an art dealer, which would have entitled them, as well as defendant Brenner, who bought it from their gallery, to the protection of subdivision (2) of section 2-403 of the Uniform Commercial Code. To the contrary, plaintiffs point to depositions by Feigen from which it is gleaned that neither Feigen nor the responsible employee of the Feigen corporations ever inquired whether Wertz was a dealer. The issue of fact created out of defendant Feigen’s own mouth is sufficient to defeat the defendants’ motion for summary judgment dismissing the complaint. Concur—Lupiano, J. P., Capozzoli, Nunez and Markewich, JJ.