The opinion of the court was delivered by: BYERS
This is an action under Title 8 U.S.C.A. § 903, in which the plaintiff seeks a judicial declaration that he is a national of the United States.
The plaintiff's uncontradicted testimony, his identity certificate, and the State Department's records concerning his application for registration of December 22, 1944, constitute the entire record. The latter contains recitals in the final printed paragraph on page 1 which probably were intended to be stricken and have been disregarded.
The undisputed facts are that the plaintiff was born in the Borough of Brooklyn on May 22, 1916 of unnaturalized Italian parents and thereby acquired citizenship in the United States.
At the age of five years he was taken by his parents to Sicily and he continued to live there through August 2, 1946, when this complaint was filed, after which he procured the statutory certificate of identity on July 1, 1947 (Plaintiff's Exhibit 1) to enable him to maintain the action, since which time he has resided here.
In 1936, being twenty years of age, he received a notice calling him for service in the Italian Army, in which he became a musician and served for eighteen months, and then was discharged.
In 1939 he was again called for service in the Italian Army and served until 1942 in the Medical Corps and in the latter year became a prisoner of war of the British Army, probably in Africa although the evidence does not touch this subject; he obtained his release from that captivity in 1942 and was sent to his home in Sicily and there remained until 1947 at least.
When he received the second notice he did not at once comply and was put in jail for a week ('Because they thought I was a spy then'), at the end of which time he joined the Italian colors.
Disputed Questions of Fact.
Plaintiff testified that when he received the original call for army service in 1936,
'I went in Palermo to the American Consu. I say, I received notice from the Italian Army to go in and serve in the army. So I spoke to a fellow there, and he told me, 'Now, you got to go in the army. When you come back, we will see what we can do."
The foregoing is contrary to the recital in the 'Certificate of Expatriation in the Case of Vencenzo Augello' bearing date September 17, 1937, attached to Defendant's Exhibit A, part of which is an affidavit by Alfred T. Nester, Consul of the United States, which reads in part that this plaintiff:
'has expatriated himself by taking an oath of allegiance to the King of Italy.
'The evidence of such action consists of the following:
'He joined the In Army on November 21, 1936, and took the oath of allegiance of June 5, 1937. He did not protest in any American consular office against serving or taking the oath. * * * He expatriated himself
as aforesaid on or about June 15, 1937.'
It can be seen that the plaintiff became 21 years of age ...