The opinion of the court was delivered by: ZAVATT
The plaintiff, now incarcerated in the Attica State Prison, Attica, New York, seeks a declaratory judgment for the recovery from the defendant of the sum of $ 2,000 which amount represents a sum posted in lieu of bail by the plaintiff's father, Michael Savini, which was forfeited when the plaintiff failed to appear for an extradition hearing on December 29, 1947. The plaintiff sues as the assignee of his father who has assigned to the plaintiff all his right, title and interest of, in and to the money so posted.
On June 30, 1943, the plaintiff was convicted of rape in the State of Michigan and sentenced to a 7 2/1 to 15 year term of imprisonment. On March 27, 1945, the plaintiff was released on parole from the Michigan Reformatory.
On November 7, 1947, the Department of Correction of the State of Michigan issued a parole violation warrant against the plaintiff charging that he had violated his parole on September 8, 1947. On November 19, 1947, the plaintiff was arrested in Nassau County, New York, as a fugitive from justice, and committed to the Nassau County Jail on November 24, 1947, to await an extradition hearing on December 19, 1947. Michael Savini, the plaintiff's father, posted $ 1,000 in lieu of bail on November 26, 1947, and the plaintiff was released from custody to await the hearing. Before the scheduled date of the hearing, the plaintiff moved from his former address without notifying his parole officer. On December 19, 1947, the Nassau County District Attorney applied to the Supreme Court of the State of New York, Nassau County, for remand of the plaintiff to the Nassau County Jail until the arrival of the Michigan authorities and for an increase in the amount of plaintiff's bail from $ 1,000 to $ 2,000. The court ordered the plaintiff to be remanded to the Nassau County Jail and increased his bail to $ 2,000. On the same day the plaintiff's father posted the additional $ 1,000 and the plaintiff was again released from custody to await the extradition hearing, now rescheduled for December 29, 1947. On the scheduled hearing date the plaintiff failed to appear and the court accordingly directed that the $ 2,000 cash deposit in lieu of bail be forfeited pursuant to N.Y.Code of Crim.Proc. § 596.
What happened after the plaintiff's release on $ 2,000 bail until his conviction in 1954 is not revealed and is not material.
In 1954 the plaintiff was convicted of robbery, second degree, in the County Court of Queens County, New York, and sentenced to a term of 7 1/2 to 8 years in Sing Sing Prison under the Multiple Offender Law, N.Y.Penal Law, McKinney's Consol.Laws, c. 40, § 1941. The sentence as a second offender was based upon the plaintiff's 1943 Michigan rape conviction. On November 20, 1957, the United States Court of Appeals for the Second Circuit affirmed an order of the United States District Court for the Northern District of New York sustaining a writ of habeas corpus on the ground that the Michigan conviction was unconstitutional. United States ex rel. Savini v. Jackson, 250 F.2d 349 (2d Cir. 1957).
On December 4, 1958, by an order to show cause returnable in the County Court of Nassau County, New York, the plaintiff's father, Michael Savini, made an application pursuant to N.Y. Judiciary Law, McKinney's Consol.Laws, c. 30, § 798, 799-a
for an order 'remitting and discharging the forfeiture for the appearance of James J. Savini, a defendant in a criminal proceeding', instead of making an application under N.Y.Code of Crim.Proc. § 598.
On March 9, 1959, this application was denied by the Nassau County Court and the order of that Court, denying the return of the sum posted in lieu of bail, was unanimously affirmed by the Appellate Division of the Supreme Court, Second Department. Savini v. Levine, 9 A.D.2d 771, 192 N.Y.S.2d 961 (2d Dept. 1959).
The defendant now moves, pursuant to Rule 12 of the Fed.R.Civ.P., to dismiss the plaintiff's action because of lack of jurisdiction of this Court over the subject matter and seeks summary judgment and judgment on the pleadings. The defendant contends that:
1. the court has no jurisdiction over the subject matter since there is no diversity of citizenship between the plaintiff and the defendant and the minimum jurisdictional amount for federal question jurisdiction is not alleged;
2. the Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202,
does not confer jurisdiction on the federal courts where none otherwise exists;
3. there has been a complete prior adjudication of the issues presented in the New York State Courts;
4. plaintiff's action is barred by the statute of limitations, N.Y.Code of Crim.Proc. § 598.
In opposition the plaintiff, appearing pro se, contends:
1. the New York State Courts have failed to give full faith and credit to the decision of the Second Circuit Court of Appeals adjudging his 1943 Michigan conviction unconstitutional;
2. the procedures followed in the state courts have denied him his property ...