Forni

The defendants appealed from the judgment, and from an order denying their motion for a new trial. The plaintiff moves to dismiss the appeal from the order, upon the ground that the undertaking on appeal makes no reference to the appeal therefrom, and consequently, that so far as the order is concerned, the appeal is ineffectual for any purpose. (Code Civ. Proc., sec. 940.)

It is conceded by the appellant that his undertaking as filed was in fact defective in the particular specified, and it is settled by numerous decisions of this court that in such case the appeal must be dismissed, if the respondent has not waived the defect, or done some act by which he is estopped to raise the objection. (People v. Center, 61 Cal. 191 ; Corcoran v. Desmond, 71 Cal. 100 ; Home and Loan Ass’n v. Wilkins, 71 Cal. 626 ; Berniaud v. Beecher, 74 Cal. 617 ; Wood v. Pendola, 77 Cal. 82 ; Schurtz v. Ro *443 mer, 81 Cal. 245 ; Crew v. Diller, 86 Cal. 555 ; Pacific Paving Co. v. Bolton, 89 Cal. 155 .)

But it is contended that the respondent in this case has waived the defect in the undertaking, and is thereby estopped to make the objection upon which his motion is based. The order overruling the…