(dissenting in part). As in Blul v. Katz, 13 N. J. 374, the surviving partners continued the partnership business without the consent of the personal representative of *373the deceased partner, and, generally for the reasons given in the dissent in that case, I would direct the surviving partners to account for the profits earned after the dissolution of the partnership fairly attributable to the use of the deceased partner’s capital.
While at the time of his death the deceased partner had, by reason of sick leave for more than 30 days in the calendar year, lost the right to participate in the profits of the partnership until he returned to active service, the long continued use of this partner’s capital in the prosecution of the business after dissolution renders the surviving partners liable for the resulting profits.
The partnership agreement provided for a determination and payment of the net worth or value of the deceased partner’s interest in the partnership within 30 days after death. This partner died on October 1, 1950. On December 27 ensiling, the surviving partners tendered $14,000 in payment of the interest of the deceased in the business, which concededly was not in accordance with their obligation under the contract. Plaintiff’s repeated efforts to determine the net worth or value in keeping with the contractual formula were rebuffed, and this suit was brought on February 15, 1951. Plaintiff’s endeavors to examine the partnership books of account were in vain until May 2 following, when an order to that effect was made in the cause at the instance of plaintiff. Meanwhile, no audit was made; and if an inventory of the machinery and equipment was taken, it was not made available to plaintiff until January 2, 1952. And the judgment of this court constitutes a finding that the surviving partners sought to evade their contractual duty.
Tn these circumstances, it is but just and equitable that there be an accounting of the profits made through the use of the deceased partner’s capital in the continuance of the partnership business.
And I would include in the partnership assets the value of machinery and equipment for which an expenditure of $2,413 was made. I find no defense, to the prima facie case made to this claim; also, I would make an allowance for *374the installation of the partnership machinery, such as may reasonably be deemed an added element of value.
I would also modify the judgment accordingly.
Hehee, J., concurring in result. For modification—-Chief Justice Vanderbilt, and Justices. I-Iehee, Oliphant, Waoheneeld, Burling, Jacobs and Brennan—7. Opposed—None.