
    In the Matter of Pinelawn Cemetery, Respondent, v. John P. Lomenzo et al., Constituting the Cemetery Board in the Division of Cemeteries in the Department of State, Appellants.
   -Order Supreme Court, New York County, entered on December 22, 1970, in this article 78 proceeding, modifying a determination of the appellant, Cemetery Board, by striking all provisions thereof which do not bear upon petitioner’s application for an increase in its interment charges and setting down for trial before the court issues relative to the disallowance of increases in interment charges sought by petitioner, unanimously modified, on the law, without costs and without disbursements, to the extent of directing a trial on all issues raised by the pleadings and other papers submitted at Special Term. A trial is necessary herein in order to resolve the objections raised in the petition and to determine whether or not the actions taken by the Cemetery Board are arbitrary and capricious. The precise basis for the decision to allow only a limited increase in interment charges cannot be culled from the present record. Likewise, petitioner’s objections to many of the other provisions of the board’s order are ignored by appellants. The concern expressed by appellants that the court is attempting to usurp their rate-making functions is unjustified. The trial ordered is of limited scope. Should petitioner prevail on any of the disputed issues, it would then be incumbent upon the court to remand the matter to the Cemetery Board for the fixing of interment charges and related matters. Certainly, the court may not itself undertake this function. Concur-—-Stevens, P. J., Capozzoli, MeGivern, Markewieh and Tilzer, JJ.  