[After observing that the only *33question presented by the case was whether the facts found by the referee justified his conclusion of law.]—It appears by the referee’s finding, that a religious society was formed on February 26, 1849; that it was subsequently incorporated as a church in due form by the name of The Eeformed Protestant Dutch Church of Westfield, Staten Island and that the said corporation is the plaintiff in the action; that David Brown, the testator of defendant, on the day of the formation of the society, promised and agreed, by subscriptions made by him, to give and pay the sum of five hundred dollars towards the erection and building of a church, and the fvirther sum of one hundred dollars a oyear for the support and maintenance of a minister of the gospel for said church, and that he afterward and after the church building had been nearly completed, again promised and agreed to give and pay the said sums for the objects specified, and expressly waived the operation and force of a clause in an article of agreement, or a statement made and signed on April 9, 1849, in relation to the indebtedness of the church (the nature of which does not, however, appear); that Brown has departed this life, leaving sufficient assets to pay all debts owing by him, and that on or about February 3,. 1853, letters testamentary on his estate were granted to the defendant; that‘the plaintiff’s demand, as set forth in the complaint, has been repeatedly presented to her for payment previous to the commencement of this action, and that she has; neglected and refused to pay the same.
These are all the facts I deem pertinent or material to the-question to be considered by this court. Whether the plaintiffs were incorporated on September 11, 1849, as found and decided by the referee, or on June 31,1851, when the certificate of incorporation was acknowledged and recorded, as; claimed by the counsel of the defendant, is wholly immaterial-They were in fact incorporated long before the commencement, of this suit.
The facts above stated do not show, nor is it expressly found, by the referee, to or with whom the promise or agreement of" Brown was made; but it does appear that it was made at the-time of the formation of the society, and that it was made by-subscription. It will, therefore, in the absence of an express *34statement or finding, be presumed on appeal, that it was a'legal subscription in and by which he, in some way, legally obligated himself to pay the sums subscribed for the use and benefit of the society, and in carrying out the objects contemplated. This presumption is fully warranted by the rule laid down by this court in Carman v. Pultz, 21 N. Y. 547, “ that error on the part of the court below will not be presumed, but must be made duly to appear. Hence it is incumbent on the appellant to take care so to present the facts upon which the case depends, as to show affirmatively that an error has been committed. This court will presume nothing in favor of the party alleging the error, but if compelled, through the imperfection of .the statement of facts, to resort to presumptions at all, will adopt only such as will sustain the judgments; ” and “ where, as in this case, there is an evident omission of important facts in (he statement or report, we must presume the facts to have been such as would warrant the judgment rendered.”
I will only add, that it was not necessary that the promise or agreement should be to or with the plaintiffs in their corporate capacity. The general statute regulating the incorporation of religious societies (L. 1813, c. 60; 3 R. 8. 282), expressly provides by section 4, that the trustees of every church, after it is incorporated, are authorized and empowered to take possession of all the temporalities belonging to the church, or to any other person for its use, and also in its corporate name to sue and recover, hold and enjoy all the debts, demands, rights and privileges belonging thereto, in whatever manner the same may be held, as fully and as amply as if the right or title thereto had originally been vested in the said trustees.
The plaintiffs, therefore, on becoming incorporated, became Tested with the right to demand from Brown the amount of his subscription. See Stanton v. Wilson, 2 Hill, 153; Hamilton Plank R. Co. v. Rice, 7 Barb. 157, and Farmington Academy v. Allen, 14 Mass. 172.
There is nothing in the facts disclosed by the referee’s decision, which requires or demands the interposition of any technical rule of law to defeat the benevolent or religious intentions of the testator in forwarding the good work and enterprise to which he became a liberal subscriber.
*35Those facts, on the contrary, imposed a legal duty, and the referee has properly decided, and his decision and the judgment thereon should be affirmed, with costs.