Motion granted and judgment modified by adding to the paragraph of said judgment marked "Second," the following: "Nor shall said injunction be at all operative if within ninety days from the service upon the defendants, appellants, of a copy of the order of the Supreme Court making the judgment of this court the judgment of the Supreme Court, the defendant, appellant, the city of New York, shall apply to the public service commission of the first district for a determination as to the manner and method by which the said Baychester avenue shall cross the tracks of the defendant, appellant, the New York, New Haven and Hartford Railroad Company, pursuant to the provisions of section 90 of the Railroad Law, and that upon such application being made said injunction shall not be operative for a period of ninety days after the final determination of the said application by the public service commission; and that upon the compliance by the said defendants, appellants, with the determination of the said public service commission, then and in that case and from that time the laying out and establishment of the grades and the proceedings for
the acquisition of the title to said Baychester avenue, and the construction, erection and maintenance of the crossing of the railroad tracks at Baychester avenue shall be legal and valid as to the plaintiff and none of the provisions of the said injunction shall continue, but the same shall be deemed vacated."