I cannot agree with, the determination reached by the majority that Bayer Aspirin is not a “ proprietary ” medicine within the meaning of section 6816 (subd. 2, par. c) of article 137 of the Education Law. I concur completely with Special Term’s conclusion in this respect. The exhaustive memorandum of Justice Motile in my view correctly sets forth the state of the authorities in New York and all other jurisdictions on the subject and no good purpose can be served by repeating what he has so ably written.
In my judgment Bayer Aspirin is a proprietary medicine within the ‘ ‘ common usage ’ ’ definition of that term. The appellant Board of Pharmacy’s position that Bayer Aspirin is not protected by letters patent and therefore cannot be a proprietary medicine embraces a narrow and limited definition of the term which has not been applied by the courts of this State and many others nor by the general public in its understanding of the term. Indeed, to equate either the ownership of a patent or the exclusive right to sell with the existence of a proprietary medicine is giving to the term a very limited connotation not recognized by the medical or pharmaceutical professions. Definitions of ‘‘ proprietary ’ ’ taken from all leading medical dictionaries include “ any chemical, drug, or similar preparation used in treatment of diseases, if such article is protected against free competition as to name * * * ” (Dorland’s Illustrated Medical Dictionary [23d ed.], p. 1113, italics supplied; Blakiston’s New Gould Medical Dictionary [2d ed.]; Journal of Amer. Pharmaceutical Assn., 1915, vol. IV, p. 1152). Even under this technical and limited definition it is clear that Bayer Aspirin meets this test for in addition to the protection of the name by the Bayer trade-mark, it is further protected by the secondary meaning the word “ Bayer ” has achieved over the years in the minds, of the purchasing public. Surely, Bayer Aspirin is “ set off distinctly enough ’ ’ to fall within the category of proprietary medicines as laid down in Matter of White v. State Bd. of Pharmacy (285 App. Div. 486, 488).
Without adverting to the multitude of authorities recited in Special Term’s memorandum, I believe that the “ common usage ” definition found in Wrigley’s Stores v. Board of Pharmacy (336 Mich. 583) should be applied to this issue in the case at bar. The five requirements there set forth are (1) a medicine in which a property right exists in the producer and which the public buys in reliance primarily on the producer or the proprietor and not the retailer, (2) the property right may be attributed to a patent, trade-mark, special formula or unique process for preparation, (3) distribution is in prepackaged and fully *191prepared form ready for use by the consumer with adequate directions for use, (4) extensive advertising by brand name so that the public relies on the name, (5) no prescription is needed. That this test is generally adopted is demonstrated by the uncontroverted fact that Bayer Aspirin is sold freely in non-drugstore outlets in 46 States and the District of Columbia.
The use of the word “ proprietary ” in the statute has been continuous since 1897 (L. 1897, ch. 297) when it was a part of section 187 of the Public Health Law, one of the sections from which section 6816 (subd. 2, par. c) of the Education Law was derived. To give to it the limited definition, i.e., protected by patent, urged by the appellant board is to exalt language over substance and adopts a construction which has no practical benefit to the public. The board argues that there is something magic about the work “ proprietary ”. If the manufacture and sale of a medicine which is not “ poisonous, deleterious and/or habit forming ” is protected by a patent it may be freely sold by any retailing outlet without restriction. What reason in common sense should require a change in this manner of distribution simply because 17 years have elapsed and the exclusive property right secured by patent has expired? Does this fact standing-alone make the sale of such a product by businesses other than registered pharmacists evil whereas for 17 years before, when protected by patent, the law sanctioned its distribution by sources other than druggists 1 If so, why? Surely, no reasonable answer would be that the limited definition of the word “ proprietary ” requires it. I submit that there is no reason compatible with logic which can be advanced for the determination demanded by the appellants in this respect.
In addition to adopting the “ common usage ” definition, Special Term buttressed its finding that Bayer Aspirin was a proprietary medicine by determining that Sterling Drug, Inc., employed a secret process in the manufacture of Bayer Aspirin. The respondent urges this to be a fact and there is some support for this claim. Although I am inclined toward this belief, my reasons are more visceral than factual for I do not find sufficient in the record upon which to hold absolutely that a secret process is used. It is, however, amply demonstrated by the affidavits of respondent that Bayer Aspirin produces a higher quality of aspirin than required by the minimum standards of the United States Pharmacopoeia, and it may also be fairly reasoned from this record that the process used in the manufacture of Bayer Aspirin produces a tablet superior to most other aspirins.
*192I think it unnecessary at this stage of the action to reach the constitutional question. If the position taken by the majority that the limited definition of “ proprietary ” must be used because the expiration of the letters patent prevent the holding that Bayer Aspirin is a proprietary medicene, then I adopt in toto Special Term’s treatment and disposition of this issue. I concur with Special Term’s finding that “ The facts before the court fail to show any such relation in the sale of Bayer Aspirin Tablets to the public health or welfare as would justify the exercise of the police power by the State ”.
The position thus taken is fortified by the following excerpt from the opinion of the Court of Appeals in People v. Bunis (9 N Y 2d 1, 4): “ the Legislature has prohibited unquestionably legitimate sales and rendered criminal conduct that carries not the slightest taint of corruption or impropriety. This it was not privileged to do; its enactment is arbitrary and violative of due process. (See Weaver v. Palmer Bros. Co.. 270 U. S. 402; Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537; People v. Estreich, 297 N. Y. 910; People v. Kuc, 272 N. Y. 72; People v. Gillson, 109 N. Y. 389; Matter of Jacobs, 98 N. Y. 98.)
“ The police power is ‘ very broad and comprehensive ’ and in its exercise ‘ the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other ’. (Matter of Jacobs, 98 N. Y. 98, 108, supra.) But, in order for an exercise of the police power to be valid, there must be ‘ some fair, just and reasonable connection ’ between it and the promotion of the health, comfort, safety and welfare of society. (People v. Gillson, 109 N. Y. 389, 401, supra.) ‘ The property of a citizen * * * may not be taken from him without rhyme or reason ’ (Defiance Milk Prods. Co. v. Du, Mond, 309 N. Y. 537, 541, supra); that is, a statute may not infringe upon the right of an individual ‘ to pursue a lawful calling in a proper manner, or * * * deprive a person of his property by curtailing his power of sale, * * * unless this infringement and deprivation are reasonably necessary for the common welfare ’. (People v. Gillson, 109 N. Y. 389, 400, supra.) ”
Notwithstanding what I have written about my concurrence with much of Special Term’s memorandum, I cannot agree with its determination that the plaintiff-respondent is entitled to summary judgment on the record before us. In order to find exemption from the registration requirements of article 137 it must be found that Bayer Aspirin is not only a proprietary drug *193but that it is also not ‘‘ poisonous, deleterious and/or habit forming ”. The respondent makes that claim in its complaint but that allegation is denied in defendants’ answer. Special Term states in its memorandum that in the argument before him counsel for the defendants on three occasions conceded ‘ ‘ that for the purposes of the motions no claim was made that Bayer Aspirin Tablets are a harmful remedy ”. (22 Misc 2d 131, 133, supra.) The appellants, upon the argument of this appeal, refused to make such a concession although they readily admitted that for the purposes of the appeal it was not necessary to prove that aspirin was harmful. The statement contained in the affidavit of the Secretary of the State Board of Pharmacy that ‘‘ For the purposes of this motion, defendants ’ position is that whether the drug is ‘ harmful ’ or ‘ deleterious ’ is not material and the reference is not intended to indicate that it is ” is construed differently by both parties. Respondent claims that this is a concession that aspirin is not a harmful drug and the appellants contend that the statement indicates that whether it is or not is not material to the issue before us. I cannot find in the appellants ’ affidavits any factual information from which it can be determined here that aspirin is harmful. However, neither can I find any facts in the respondent’s affidavits proving that it is not harmful. There are the conclusory assertions by respondent that it is not “ harmful ”, that “ It is generally considered the world’s safest drug. It is not poisonous, deleterious or habit forming ’ ’, that it has ‘‘ extremely low incidence of side effects ’ ’, that although it is “ frequently taken in very large doses with suicidal intent but usually without success These statements are not sufficiently evidentiary in character to justify summary judgment. This is too serious and important an issue to be determined summarily upon the record before us.
The issues here presented cannot be properly resolved without a trial. Judge Dye in Falk v. Goodman (7 N Y 2d 87) gives us the principle to be followed in this statement at page 91: “It is well established that summary judgment may not be granted whenever the pleadings raise clear, well-defined and genuine issues; nor may it be granted whenever there is doubt as to the existence of a triable issue or when the issue is arguable since ‘ issue-finding, rather than issue-determination, is the key to the procedure ’ (Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404 [1957]). This is so because the granting of such a motion is the procedural equivalent of a trial.” In the posture of the action before us it is well to heed the *194admonition of Judge Learned Hand in California Apparel Creators v. Wieder of California (162 F. 2d 893, 903), that “ Speed and hurry ought to be antipodes of judicial behavior.”
The defendants’ motion was properly denied but the order granting plaintiff summary judgment should be reversed; none of the parties is entitled to summary judgment.
All concur, except Goldman, J., who concurs in the reversal but votes to deny summary judgment to either party, in an opinion. Present — Williams, P. J., Bastow, Goldman and Henry, JJ.
Judgment reversed on the law, without costs of this appeal to any party and judgment directed in favor of the defendants.