Per Curiam,

Notwithstanding the able and ingenious argument of the learned counsel for defendant, we are satisfied there is nothing in the circumstances of this case to justify us in allowing the proposed amendment. If it is intended as an additional and substantive ground of defense, application for leave should have been made to the court below. We prefer disposing of the question, which counsel for the city and its controller intended to present for our decision, just as it came to us from the court below.

We find nothing in the record that calls for any modification of the judgment heretofore entered, or of the reasons given in support thereof.

Leave to amend is therefore refused, and it is ordered that the judgment heretofore entered stand as the judgment of this court.