
    Joseph WAGMAN and Mildred Wagman, his wife, Appellants, v. Maurice LEFCOE and Edythe Lefcoe, his wife, Appellees.
    No. 61-432.
    District Court of Appeal of Florida. Third District.
    June 26, 1962.
    Rehearing Denied Aug. 21, 1962.
    Henry L. Balaban and Carl A. Spatz, Miami, for appellants.
    Bolles & Prunty, Miami, for appellees.
    Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.
   PER CURIAM.

This appeal is from an order entered on a motion to dismiss, which dismissed with prejudice one of two counts of the amended complaint. Thereafter, the plaintiff dismissed the second count. Following argument here, we dismissed the appeal. On rehearing, the appeal was reinstated and is now determined on the merits.

The action in the trial court was one brought by a lessee, after ouster for default, to recover a security deposit. The trial judge ruled the action was premature under express provisions of the written lease, and we agree. See also Kanter v. Safran, Fla.1953, 68 So.2d 553, 558; Id., Fla.1958, 99 So.2d 706; Hyman v. Cohen, Fla.1954, 73 So.2d 393; Stenor, Inc. v. Lester, Fla.1951, 58 So.2d 673. However, the dismissal should not have been with prejudice, and the order appealed from is hereby modified to be without prejudice, and, as so modified, is affirmed.

Modified and affirmed.  