The Manhattan District Attorney moved yesterday to prevent the Museum of Modern Art from returning to Austria two paintings from a recent show whose provenance is clouded by Nazi wartime plundering. He said he would begin a criminal investigation into ownership of the artwork.
The District Attorney, Robert M. Morgenthau, issued a subpoena to halt the transfer of two paintings by Egon Schiele, a move that jolted many art professionals, who feared it would upset loan agreements among museums around the world.
Earlier in the day, Austria's Leopold Museum, which possesses the paintings, had proposed creating an international fact-finding tribunal to examine the claims of two families who say they are the rightful owners. The Leopold Museum said it would be bound by the tribunal's findings.
Earlier in the day, Austria's Leopold Museum, which possesses the paintings, had proposed creating an international fact-finding tribunal to examine the claims of two families who say they are the rightful owners. The Leopold Museum said it would be bound by the tribunal's findings.
But the Austrian museum's olive branch did not satisfy the families, who insisted that the paintings be left in the United States as insurance that the panel's process would be fair. Mr. Morgenthau, who was asked to investigate the ownership by one of the families, said, "We've opened an investigation and are taking steps to keep the two paintings in Manhattan."
He declined to comment further, but the issuance of the subpoena indicates that his office will take the matter before a grand jury where the paintings will be used as evidence. The subpoena could bar the return of the paintings to Austria, at least for the length of the investigation, which could take months if not well over a year.
"There is no comparable instance in history," said Klaus A. Schroder, the managing director of the Leopold Museum, of Mr. Morgenthau's actions. Speaking in a late-night telephone interview yesterday from Vienna, he said: "This could rise up to a very big scandal, and I'm very afraid of that. I cannot say what will happen in the next hours and days."
Cultural property loans are normally protected from seizure, he explained.
But the families reacted with joy, preferring to dwell on the development's potential implications for resolving ownership questions surrounding the tens of thousands of works of art that changed hands illicitly before and during World War II. The disputes have spread to several countries and are growing.
"It's fabulous," said Rita Reif, an heir to Fritz Grunbaum, a Jewish comedian who died in Dachau in 1940 and owned the painting "Dead City," a somber landscape. "Now we can resolve what has been a half century of great loss. This will start a process that will be important not just to us, but to others who were victims or heirs of victims of property losses during the Holocaust."
Ms. Reif is a former reporter for The New York Times and still contributes a column for the paper.
Henry S. Bondi, a member of the other family, which claims "Portrait of Wally," a melancholic picture of Schiele's mistress, also applauded Mr. Morgenthau's action. "You know what Lenin said: 'Trust is good; control is better.' "
Others disagreed. "This is a polarizing development," said Constance Lowenthal, the director of the World Jewish Congress's Commission for Art Recovery, which is based in Manhattan. "I was sorry to learn of it."
Ms. Lowenthal, whose organization was created last fall to locate and reclaim art stolen from Jews in the 1930's and '40s, had earlier hailed the Leopold Museum's offer as momentous. She called it "an important step, and I think unprecedented." She knew of no other instances in which the possessor of a disputed painting offered to help organize and be bound by a panel's decision.
When the subpoena came, the disputed paintings, part of "Egon Schiele: The Leopold Collection," which closed last Sunday, were hours away from shipment to the Leopold Museum in Vienna. The collection and museum are named for Dr. Rudolf Leopold, a 72-year-old Viennese ophthalmologist. Until 1994, when he sold most of his art to the Austrian Government-financed Leopold Foundation, Dr. Leopold owned some 5,400 works, including 250 by Schiele, the Austrian Expressionist who died in 1918.
"We will be meeting with the D.A.'s staff to discuss the matter," the Museum of Modern Art said in a statement issued by Elizabeth Addison, deputy director for marketing and communications. "The museum has no reason to believe it is the target of any investigation, and we remain hopeful that this very complex and emotionally charged situation can be resolved in a constructive manner for all parties."
The clouded past of the two paintings was outlined in two articles in The New York Times.
Dr. Leopold procured "Wally," which was confiscated from Lea Bondi Jaray, a Jewish art dealer who fled Vienna for London in 1938 in a trade with the Austrian National Gallery in 1954 and purchased "Dead City" from an art dealer in the 1960's.
At the end of last month, the two families appealed to the Modern to retain the paintings in New York until their cases could be heard. But last weekend the museum turned down their pleas, citing contractual obligations to the Leopold Foundation.
Mr. Morgenthau said that the Museum of Modern Art left room for his office to take action when it failed to register the paintings with the United States Information Agency. The Modern does not normally apply for federal protection against seizure, but relies instead on New York State law, a spokeswoman said.
Mr. Schroder, in Vienna, said he was unsure whether the Leopold Museum's offer to submit to an international panel still stood.
The panel, he said, was to be composed of "very responsible and very prestigious people" nominated by Ms. Lowenthal's organization and agreeable to the Reif and Bondi families. It would not include representatives from the Leopold Museum or the Austrian National Gallery, he said.
"Why should we leave the paintings in the United States?" Mr. Schroder said. "That would be a mistrust of Austria. At the moment they belong to the Leopold Museum and the Austrian Government. People should not doubt that the fact-finding will not be done as seriously as it should be if the paintings are not in the United States." The paintings must return to Austria, he added, so that the museum's board members could fulfill the charter requiring them to oversee the security of the paintings.
But the families were upset by some language in the Leopold Museum's statement, which read in part, "The Leopold Museum, together with the Austrian National Gallery, has examined all available documentation in conjunction with 'Dead City' and 'Portrait of Wally' and to the best of its knowledge the Leopold Museum has true ownership."