Wagman v. Lefcoe

143 So. 2d 550, 1962 Fla. App. LEXIS 3072

Opinion

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.