The decision of the referee having been affirmed by the supreme court, is conclusive on the question of fact in this case. (Code, § 272; Borst agt. Spellman, 4 Coms., 284-289; Dunham agt. Watkins, 2 Kern., 556-560; Griffin agt. Marquardt, 17 N. Y. R., 28; Hoyt agt. Thompson's ex'r, 19 id., 207-211; Miller agt. Schuyler, 20 id., 522, &c.; Carman agt. Pultz, 21 id., 547.) We must therefore assume the facts found by the referee to be correctly found; and as no exceptions appear to have been taken to any decision relative to the admissibility of evidence, or otherwise, during the process of the trial, the only question to be considered is, whether those facts justified the coifclusion of law to which the referee arrived.

It appears by his finding, that a religious society was formed on the 26th day of February, 1849; that it was subsequently incorporated as a church in due form by the name of The Reformed Protestant Dutch Church of West-field, Staten Island, and that the said corporation is the plaintiff in this action; that David Brown, the testator of the 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 further sum of one hundred dollars a year for the support and maintenance of a minister of the gospel for said church, and that he *87afterwards, 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, on a statement made and signed on the 9th. day of April, 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 the 3d day of February, 1853, letters testamentary on his estate were granted to the defendant; that she has assumed the duties of executrix; that the plaintiffs’ 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 the 11th day of September,' 1849, as found and decided by the referee, or on the 31st day of June, 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 statement 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 Car-man agt. Pultz, (supra,) “ that error on the part of the court below will not be presumed, but must be made clearly to *88appear. Hence it is incumbent upon 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 such only as will sustain the judgmentand “ where, as in this case, there is an evident omission of important facts in the statement or report, we must presume these 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, (3 B. S., p. 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, whether given, granted or devised directly 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 whatsoever 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 vested with the right to demand from Brown the amount of his subscription. (See, also, 2 Hill, 153; 7 Barb, 157, and 14 Mass. Rep., 172, cited by the supreme court.)

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.

Those 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.