90 Ninth Annual Report of the 



health officer, Augusta, Maine, whose report is most laudatory: 

 so is the report made iu Kansas City, October, 1899, by Dis. 

 Froehling, Kuhn and Moechel, based upon minute physiological 

 tests with a large number of patients who had taken milk con- 

 taining " Preservaline." The most eminent scientists of Eng- 

 land and Germany have also reported that the use of formalde- 

 hyde or of " Preservaline " in dairy products far from being 

 harmful, was, on the contrary, extremely beneficial. Indeed, 

 " Preservaline," for the sale of which the defendant is being 

 prosecuted, has been in general use since 1877, when it was first 

 introduced, and during that time it has uniformly increased the 

 health and comfort of the community which used it. 



At any rate the court cannot take any judicial notice of state- 

 ments such as made on pages 11 and 12 of the appellate's brief, 

 which are not contained in the complaint, and for which no 

 other sanction is offered than the bald assertion of counsel for 

 appellant, who, while not a chemist or physician, was a mem- 

 ber of the Legislature that enacted the law which the Special 

 Term and unanimous Appellate Division have declared to be un- 

 constitutional. 



\b.) The appellant states that (Brief, p. 13) we would have the 

 statute read: " Xo person shall sell any dairy product contain- 

 ing a harmful preservative." Why should he object to such a 

 statute? A similar one is in force in this State, and has been 

 for a large number of years, to wit: Section 22 of the Agricul- 

 tural Law. This section prohibits the sale of any unclean, im- 

 pure, unhealthy, adulterated or unwholesome milk or cream. 

 If the product sold by the defendant be unwholesome, or if milk 

 containing it be injurious, he can be prosecuted under this sec- 

 tion of the law. It may be well to add for the information of 

 the court that a number of actions have been brought by the 

 State under this section to recover penalties for the use of " pre- 

 servaline," but in no instance has any jury found that " preserva- 

 line " was unwholesome or harmful. 



ic.) With regard to the case of People v. Cipperty, 37 Hun, 321 

 (101 N. Y., 631), we have discussed it in another portion of our 



