(dissenting in part). I concur in the opinion of the majority to the extent that it holds the partial defenses to be good. However, I think that the complete defense interposed by defendant to both causes of action should also be sustained. Plaintiff relies upon New York Life Ins. Co. v. Guttenplan (30 N. Y. S. 2d 430 [not officially reported], affd. 259 App. Div. 1004, affd. 284 N. Y. 805) and cases there cited to uphold her contention that defendant insurance company cannot under any circumstances ever assert as a defense its conceded overpayments to plaintiff. True, it is now the settled law that an insurance company may not, where the insurance contract is fully executed, recover from a beneficiary any sums theretofore paid by mistake. However, defendant in its complete defense is simply claiming that it has overpaid plaintiff on previous disability installments under continuing contracts of insurance and that it is entitled to offset such overpayments against the amounts which have become due under the same policies for the month of April, 1942.
The exemption provision in section 166 of the Insurance Law of 1939 upon which plaintiff relies runs solely to the insured and is confined to debts or liabilities of the insured. In the .instant *236case the disability benefits are payable to the plaintiff, the insured’s assignee, and the debt for which recoupment is sought is a debt not of the insured but of the assignee.
The order of the Appellate Term and the judgment and order of the Municipal Court should be reversed, the verdict for defendant reinstated and judgment directed in favor of the defendant dismissing the complaint.
Martin, P. J., Towñley and Untermyer, JJ., concur with Dore, J.; Cohn, J., dissents in part, with opinion.
Determination of the Appellate Term modified by granting judgment in plaintiff’s favor on the first cause of action for $48.24 and on the second for $192.94, totaling $241.18 with interest ánd costs, granting plaintiff’s motion to dismiss the complete defense, but denying plaintiff’s motion to strike out the partial defenses, and the judgment and order of the Municipal Court are so modified, and such determination, judgment and order, as so modified, are affirmed, without costs in this court. Settle order on notice.