(dissenting).
I would reverse the judgment of the Appellate Division and reinstate the ruling of the trial court in favor of defendants. This is a case where for all practical purposes the building had been completed and the Board of Education had taken posses*530sion. The fire happened on August 9, 1974. Since early June, the Board had provided for twenty-four hour guard duty for the building. By that time the Director of the school, two guidance counsellors, one teacher and a clerk were on the premises, all engaged in their respective professional and clerical responsibilities. Commencing on or about June 9 the building was used to interview between 50 and 100 students on a daily basis. As of August 8 some 16 persons had been assigned to the building by the Board, including five teachers who were making preparations for the school year commencing in September. The entire first floor of the building was occupied by Board employees as was the library area on the second floor. Portions of the third floor were being used to store cartons of supplies and furniture belonging to the Board.
At this point the Board, recognizing that it had taken possession of the building, arranged for fire insurance and extended coverage by Hartford. On Friday, August 9, in mid-afternoon, while Board employees were occupying the building in the manner heretofore described, the fire started among some of the Board’s cartons stored on the third floor.
Such occupancy of the building by the owner created risks unrelated to construction for which the builders should not be held responsible. Hundreds of people had been using the building for Board purposes. In this situation, as the trial court found, the risk of loss had passed from the builders to the Board. The latter had recognized this by providing for its own insurance coverage. Indeed, although the cause of the fire was never determined, the stipulated facts show that the fire started among stored cartons belonging to the Board at a time when Board personnel were present in the premises. Absent a showing that one of the few construction employees in the building had caused the fire, the risk was that of the Board and was covered by the Hartford policy.
*531The present suit by Hartford is nothing more than an attempt to shift the risk, which it underwrote, to the builders and their insurers on the ground that there had not been a “formal” acceptance of the project by the owner Respite its almost complete occupancy prior to the fire.
I would reverse the Appellate Division and reinstate the judgment of the trial court. Justice CLIFFORD joins in this dissent.
For affirmance—Chief Justice WILENTZ and Justices PASHMAN, SCHREIBER, HANDLER and POLLOCK—5. For reversal and reinstatement—Justices SULLIVAN and CLIFFORD—2.