The opinion of the court was delivered by: SMITH
The plaintiff was born in Elizabeth, New Jersey, on September 4, 1913, of foreign parents who were citizens and nationals of Germany. He resided in Elizabeth until April of 1920, when, after the death of his father in 1918, he was taken to Germany by his mother. Thereafter he resided in Germany continuously until September 26, 1951, when he entered the United States as a nonquota immigrant; he established permanent residence in Irvington, New Jersey, where he now resides.
The plaintiff executed and filed a formal application for a United States passport at the office of the American Consular Service in Hamburg, Germany, on December 11, 1936. The application contained the usual oath of allegiance, to which the plaintiff subscribed before the Consul. It was then the intention of the plaintiff to return to the United States within one year and after he had completed his professional education and the required apprenticeship.
The issuance of the passport was recommended by the Consul, and the plaintiff was so advised by letter on March 4, 1937. The plaintiff then made application to the German authorities for an 'exit permit,' but this application was denied because he had not completed eight weeks of military training, which was apparently required under the laws of Germany. The plaintiff took no further action to perfect his application and the passport was not issued.
The plaintiff was given notice in February of 1940 to report for induction into the armed forces of Germany under the conscription laws; he reported in response to the notice but was granted a deferment on the request of his employer. Thereafter, on March 17, 1940, the plaintiff was given a notice to report for service in the 649th Searchlight Battalion, a division of the German army, at Wesel; he reported to the =battalion commander' and was thereupon assigned to the 'first battery.' He informed the 'battalion commander' that he was a citizen of the United States but did not protest his induction because he feared 'reprisals'; it seems obvious, however, that such protest would have been futile under the circumstances.
The law of Germany, promulgated in 1934, required 'soldiers in the Wehrmacht' to take the following oath: '* * * that I will unconditionally obey Adolph Hitler, the Fuhrer of the German Reich and people, and the Commander-in-Chief of the Wehrmacht, and will be willing as a brave soldier to sacrifice my life at any time for this oath.' The plaintiff testified, however, that the oath was not administered and that he took no oath of allegiance at the time of his induction; his explanation (transcript of testimony, pages 18, 19 and 20) is credible, and we are inclined to accept it as true. Whether or not the plaintiff took the prescribed oath is immaterial; the oath was a concomitant of his conscription, and if it was taken, it was taken under circumstances clearly tantamount to duress.