
    The People of the State of New York, Plaintiff, v. Dennis Harkins, Defendant.
    County Court, Erie County,
    March 22, 1966.
    
      John W. Condon for defendant. Michael F. Dillon, District Attorney (David F. Mix of counsel), for plaintiff.
   Frederick M. Marshall, J.

This is a motion brought by the defendant to dismiss the instant indictment, and to transfer the proceedings to the Erie County Family Court. The defendant asserts that under sections 812 and 813 of the Family Court Act, the Erie County Grand Jury had no authority to indict since the charges concerned an assault between members of the same family.

Under the Family Court Act, the Family Court has exclusive original jurisdiction over any proceeding involving acts which constitute disorderly conduct or assault between spouses, members of the same family, or the same household. (People v. De Jesus, 21 A D 2d 236; Family Ct. Act, §§ 812, 813.)

The defendant in this case is accused of assaulting his brother-in-law in the defendant’s home.

On July 19, 1965, the same date on which the assault alleged in this indictment occurred, the defendant’s wife filed a petition in Family 'Court charging an assault. It would appear, from the papers presently before me, that the alleged assault on the brother-in-law, and on the defendant’s wife, arose at the same time, out of the same transaction.

The question presented to this court is whether or not, in this case, a brother-in-law is to be included in the term “ family ” as used in section 812 of the Family Court Act.

The classical and most common use of the word “ family”, implies father, mother, .and children and/or immediate blood relatives living in the same household. (Black’s Law Dictionary [4th ed.].)

It should be noted that section 812 of the Family Court Act was drafted by the Joint Legislative Committee on Court Reorganization. It may be assumed that the language employed was specifically selected after careful consideration.

The Legislature, under section 812 of the Family Court Act, reserved to the Family Court exclusive original jurisdiction over disorderly conduct and assaults between spouses or between parents and children, or between members of the same family or household.

If the Legislature intended the word “family” to be interpreted according to its classical definition, there would have been no need for the addition of the words spouse, parent, child, or household, since each of these terms is incorporated in the classical definition of the word ‘ ‘ family ’ ’. In drafting this section, the Legislature chose to specifically enumerate each of these relationships and then added the word “ family ”, It can be assumed that the Legislature intended to, broaden the scope of the section by including the word “ family ”,

Section 811 of the Family Court Act, entitled ‘ ‘ Finding and purpose ”, refers in broad terms to “ wives .and other members of the family”. Here, the Legislature did not specify which other members of the family were to be covered. At the same time, the fact that the Legislature specifically referred to “ wives ” suggests that it intended to include relatives other than only those normally included in a strict or classical interpretation of the word ‘ ‘ family ’ ’.

A review of the legislative history of section 812 of the Family Court Act, discloses a legislative comment to the effect that a common-law, case by case adjudication would have to define the words “family”, “household” and “disorderly conduct”, as those terms are used in section 812 of the Family Court Act.

In the past, the word “family” has been defined in many ways to designate many relationships under various parts of the law. (Collins v. Northwest Cas. Co., 180 Wash. 347.) Under various sections of the law, the word “ family ” has been interpreted, by the courts, to include in-laws not living in or being a part of the primary household. (Matter of Tiger v. Herman, 28 Misc 2d 1008; Matter of Cokley v. State Rent Administrator, N. Y. L. J., Dec. 4,1958, p. 11, col. 6.)

In this case, the alleged assault occurred between a brother-in-law and the defendant, in the home of the defendant. The defendant’s wife alleges that at the same time the defendant assaulted her.

Since marriage is a relationship which, as a matter of essence, brings spouses and in-laws into contact and into conflict, and bearing in mind that the word “ family ” has been interpreted by the courts under various sectors of the law to include in-laws, I hold here that a brother-in-law under these circumstances is part of the “ family ” intended to be covered by section 812 of the Family Court Act. (People v. Keller, 37 Misc 2d 122.)

The indictment is dismissed. I conclude that under the facts of this particular case, the .alleged assault upon the brother-in-law was an assault between members of the same family. Exclusive original jurisdiction rests with the Family Court. The matter is transferred to Family Court. (N. Y. Const., art. VI, § 19, subd. b.) In the event that Family Court decides that the matter should be disposed of by means of indictment, the Family Court Act provides appropriate procedures.  