—Judgments, Supreme Court, New York County (Ira Gammerman, J.), entered June 10, 1996 and August 15, 1996, awarding plaintiff damages of $337,756, plus interest, costs and disbursements, and awarding plaintiff attorneys’ fees of $14,592, respectively, and bringing up for review prior orders which granted plaintiff’s motion for summary judgment in lieu of complaint, and denied defendant-appellant’s cross motion to compel an assignment of the subject bond and mortgage, affirmed, with costs.
The appeal from the orders, same court and Justice, entered May 17 215 and on or about June 3, 1996, are dismissed, without costs, as superseded by the appeals from the judgments. Defendant-appellant’s payment of the outstanding indebtedness on the bond did not entitle him to be subrogated to plaintiff’s rights thereunder and the first mortgage securing it.
Since the guarantee signed by defendant does not distinguish between any of the three guarantors thereon, and, indeed, states that they are “jointly and severally, absolutely, irrevocably and unconditionally” primary obligors, defendant’s contention that plaintiff could only demand payment from him upon a failure to perform by one or both of the other guarantors, and that defendant was therefore their surety, is simply not supported by the document he signed.
We are in agreement with the decision of the motion court and its determination that it would not be equitable to permit defendant to be subrogated to plaintiff’s rights under the subject bond and first mortgage (see, King v Pelkofski, 20 NY2d 326, 333), since plaintiff, who also holds a second mortgage on the property, would have to pay defendant the amount necessary to redeem an assigned first mortgage were defendant to foreclose on it, in order to protect its second mortgage, which would effectively nullify the guarantee defendant gave to plaintiff. “The obligation assumed by a surety runs to the creditor and subrogation may not in any way defeat the creditor’s rights.” (Winkelmann v Excelsior Ins.
Co., 85 NY2d 577, 582.) We have considered defendant’s remaining arguments and find them to be without merit. Concur—Sullivan, Milonas and Mazzarelli, JJ.
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