Commissioner of Agriculture. 89 



In view of the existence of a provision of law prohibiting 

 adulteration and the introduction of unwholesome or adulter- 

 ated substances into food and dairy products, it cannot be 

 claimed that the statute under consideration in the case at bar 

 was intended or necessary to prevent adulteration. 



Accordingly, it is respectfully submitted that the complaint 

 does not state facts sufficient to constitute a cause of action, be- 

 cause section 27 of the Agricultural Law, in so far as it prohibits 

 the use of preservatives, is unconstitutional. 



In Answer to Appellants Brief. 



There are but few portions of the appellant's brief which call 

 for any answer or remark from respondent. These few will now 

 be considered. 



(a.) On pages 11 and 12 the plaintiff's counsel going entirely 

 outside of anything on the record, makes the astounding asser- 

 tion that all preservatives are harmful, and that the particular 

 preservative sold by the defendant contains formaldehyde, 

 "which is the chief element in the embalming liquid used by 

 undertakers." The resort to this entirely unworthy clap-trap 

 and specious artifice will not assist plaintiff. 



As matter of fact, plaintiff's counsel knows very well that 

 these statements are absolutely false and without foundation. 

 He knows that Dr. Geisler, the chief expert chemist of the 

 Department of Agriculture, who has had more to do with 

 the examination of dairy products than any one connected 

 with the Department of Agriculture, has testified in open court 

 that formaldehyde, if inserted in dairy products, would not in 

 the least be harmful. Dr. Geisler's testimony to this effect was 

 given in the case of Graeff against Wormser, tried in the 

 Supreme court, Kings county, before Justice Dickey. 



The counsel further knows that " Preservaline " has been ex- 

 amined and tested by a large number of scientists and by the 

 boards of health of various cities in the Union and of foreign 

 countries, and that all who have examined it have been uniform 

 in its praise; among others, may be mentioned Dr. Randall, 



